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Italian court says Dailymotion doesn’t qualify for safe harbour protection

By | Published on Tuesday 23 July 2019


After all those years of shouting about the copyright safe harbour, there was an interesting judgement in the Italian courts last week that centred on an intriguing interpretation of what that copyright safe harbour says.

It was interesting because the court seemed to put onto the safe harbour the kind of restrictions that were proposed by the music industry as the recently passed European Copyright Directive went the motions. But it didn’t do so because of the directive. Instead it simply applied a narrower interpretation of the original safe harbour text.

From a music industry perspective, it was also interesting because – although this was actually a case led by a TV company – the defendant was user-upload platform Dailymotion. Which is run by Universal Music owner Vivendi.

In a long-running case that has been working its way through the courts for years, Italian TV company RTI argued that Dailymotion should be held liable for copyright infringement for hosting content from its programmes without licence.

The user-upload platform countered that it removed specific videos containing RTI content when made aware of them by the telly firm. Which meant that it was compliant with its takedown commitments under safe harbour rules and therefore shouldn’t be held liable. That being the standard argument presented by most user-upload platforms when their users use their networks to distribute other people’s audio or video without the copyright owner’s permission.

However, according to IP Kat, the court of Rome decided that a service like Dailymotion shouldn’t qualify for safe harbour protection because it doesn’t fulfil the criteria as set out in the EU E-commerce Directive, which is where the European safe harbour originates.

Therefore, it is not enough for Dailymotion to remove specific copyright infringing videos when made aware of them by a copyright owner. This means that the firm would need to have systems in place to remove all and any uploads of programmes owned by RTI. For failing to do so Dailymotion was ordered to pay the TV company 5.5 million euros in damages.

In addition to the pay out, Dailymotion is also required to ensure RTI’s shows do not reappear on its platform. Which greatly increases the responsibility of the user-upload service, in that it doesn’t just need to remove specific videos identified by the TV firm, but somehow ensure that any videos containing the broadcaster’s programmes are blocked.

Or, in the words of RTI attorney Alessandro La Rosa, who spoke to TorrentFreak: “The actual knowledge of the infringing content can’t … be linked to the specification of the relevant URLs. The court states that a specific indication of the infringing files is enough”.

It’s likely to be seen as a controversial ruling, perhaps all the more so because the court in Rome declined to consult the European courts on how safe harbour rules in the E-Commerce Directive should be interpreted.

And, as we said, it’s interesting in the context of the new European Copyright Directive and the safe harbour reforms contained in article seventeen.

Arguably this ruling goes further than those safe harbour reforms in increasing the liabilities of user-upload platforms. Which, could, perversely, mean that the new rules might help a site like Dailymotion reduce the kind of liabilities that have been set out in this ruling. Which was a fear expressed by copyright owners outside the music industry as the final version of what became article seventeen was being negotiated.

It remains to be seen what happens next in the RTI v Dailymotion case, and the impact this ruling has on the copyright safe harbour in Italy and beyond, both before and after the Copyright Directive reforms are implemented at a national level.