By judgment of February 9th 2024 (42 O 10792/22), the court of Munich has sentenced Tik Tok for diffusing copyright protected contents without authorization and, most of all, for not making best efforts to try to obtain the authorization from the rightsholder, as requested by the Directive (EU) 2019/790 (so-called Copyright Directive).
The case
In 2021, the rightsholder of about 994 audiovisual works found out that many of its content had been published and diffused on Tik Tok, without any consent by its part. After sending 27 take down notices to the platform, 164 URLs had been blocked.
Then, the rightsholder proposed to the platform to obtain a license of the protected contents, in order to make them legally available to users. Nevertheless, after the first offer by the rightsholder, the platform dragged out the negotiations for months, first by asking to send more and more precise information, then generally contesting the economic proposal of the rightsholder.
At first, the rightsholder had provided the requested information to the platform, (such as the list of the works and evidence of the rights’ ownership) but after not receiving any counter-proposal, concluded that there were not the conditions to bring the negotiation forward. Therefore, the rightsholder filed a complaint to the Court to demand that the platform be prohibited from making its works accessible to the public, in addition to the compensation for the damage suffered.
The obligations imposed by the Copyright Directive to “Online Content-Sharing Service Providers”
The 2019 Directive on Copyright and Related Rights In The Digital Single Market introduced in the European Union significant measures of protection for copyright holders with the goal of avoiding the diffusion and reproduction of copyrighted works through new online sharing technologies without the rightsholders’ consent.
For this purpose, the Directive imposes to “Online Content-Sharing Service Providers” (that is to sharing platforms) to obtain the authorization of the rights owner in order to make the protected works or other material accessible to the public.
Moreover, based on art. 17 of the Directive, without the authorization of the rightsholder, platforms are considered liable of the unauthorized diffusion of protected materials, unless they can demonstrate to:
- have made their best possible efforts to obtain the rightsholder’s authorization;
- have made their best efforts, in accordance with high industry standards of professional diligence, to ensure the unavailability of contents for which rightsholder provided with relevant and required information;
- have acted promptly, upon receiving a sufficiently substantiated notice from the rightsholders, to disable access to, or to remove from their websites, the notified works and have made best efforts to prevent their future uploads.
The judgment of the Munich Court
According to the Court, in order to benefit from the exemption of responsibility, the platforms should demonstrate to have complied to all obligations imposed by art. 17 of the Directive, not only to some of them. This because the Directive aims at promoting the grant of licenses between rightsholders and online service providers, allowing the rightsholder to earn more thanks to the revenue of licenses. This goal, according to the Court, would be annulled if the provider was allowed to choose between obtaining a license or removing the content unlawfully published.
Therefore, in the case under exam, the blocking of 164 URLs by TikTok was not considered sufficient. As a matter of fact, after examining in details the emails exchanged with the platforms, the court concluded that TikTok’s attitude during negotiations was not directed in reaching an agreement, mainly because no real proposal had been formulated.
Therefore, failing to demonstrate to have made the best efforts necessary to acquire the rights to use the works of the rightsholder, the platform was considered liable of the copyright infringement and sentenced to compensate the damages.
Ilaria Feriti