“Manhattan Bridge”
摘要
The principles of EU law governing the liability of video-sharing and file-hosting platforms for the communication to the public of copyrighted works (see CJEU, judgments of 22 June 2021 – C-682/18 and C-683/18, GRUR 2021, 1054 = WRP 2021, 1019 – YouTube and Cyando [IIC 52:940–941 (2021), https://doi.org/10.1007/s40319-021-01094-2]; Federal Supreme Court, judgments of 2 June 2022 – I ZR 53/17, BGHZ 233, 373 [juris paras. 17 et seq.] uploaded II [IIC 54:778–786 (2023), https://doi.org/10.1007/s40319-023-01330-x]; 2 June 2022 – I ZR 140/15, BGHZ 234, 56 [juris paras. 70 et seq.] – YouTube II [IIC 54:119–142 (2023), https://doi.org/10.1007/s40319-023-01280-4]) are transferable to the liability of online marketplaces. Following a clear indication of an infringement of rights, the operator of an online marketplace, like the operator of a video sharing and file-hosting platform, is, within the bounds of what is technically and economically reasonable, as a general principle obliged to check the listings posted there for similar infringements and to block or delete infringing content. However, when applying the judicial practice governing video-sharing and file-hosting platforms, account must be taken of the specific features of online marketplaces. If the offered item itself does not infringe, but the listing is merely presented in a copyright-infringing manner, the platform operator’s obligation to check extends as a rule only to similarly presented listings, but not to all and any representation of the copyrighted work. The principles governing the liability of platforms for the communication to the public of copyrighted works are not transferable to the reproduction of a copyrighted work on the servers of such a platform. In this respect, the only liability is that governed by the criminal law principles of perpetration and participation.