OGH: On the liability of the host provider for copyright infringements

Nov 10, 2021 Benn-Ibler Rechtsanwälte

Although the operator of a video platform plays a central role in making the content posted by users accessible, this alone is not sufficient to assume communication to the public. For copyright infringement, there is only limited accountability.

In the present case, the plaintiff is a broadcaster and operator of an Austrian television station while the first defendant of the case operates an online video platform under the domain www.youtube.com. The plaintiff sought an injunction under Section 18a of the Copyright Act (UrhG) and argued that she, as an individual producer, was entitled to the copyrights to the videos that she complained about. She had granted neither the first defendant nor the users uploading the videos exploitation rights to the broadcasts. The platform operator played a central role in the copyright infringement of the users, as he made this technically possible in the first place.

The court of first instance found in favour of the plaintiff. The liability privilege of the host service provider falls away if the intermediary leaves his neutral position and takes an active role. In particular, by creating tables of contents and video suggestions, the first defendant made the upload interesting for users. In contrast, the Court of Appeal did not see any typical conduct that went beyond that of a privileged host service provider.

In a parallel case, the European Court of Justice (ECJ) held that the operation of a video-sharing platform on which users unlawfully make protected content available to the public does not constitute "communication to the public" unless the operator contributes to providing the public with access to such content in violation of copyright, beyond the mere provision of the platform.

According to the case law of the ECJ, a prerequisite for communication to the public within the meaning of Article 3 para 1 of Directive 2001/29/EC is that the platform operator acts with full knowledge of the consequences of his conduct, i.e. intentionally, in order to provide its customers with access to a protected work.

The Supreme Court (Oberster Gerichtshof, OGH) had to decide in its proceedings in accordance with the ECJ's ruling. In the case in question, communication to the public must be ruled out because the first defendant did not make an active contribution. Moreover, the first defendant immediately removed the videos objected to by the plaintiff from the platform after becoming aware of the copyrights.

Thus, the first defendant was not responsible for any communication to the public or any infringement of Sec. 18a UrhG.

OGH 4 Ob 132/21x (17.09.2021)