If users of the streaming platform use VPN Access content that in principle cannot be accessed from a locale, Geoblocking restrictions are in place (geo-blocking restriction) Is the operator of streaming media platform responsible for copyright infringement?

        recently, European Court of Justice (CJEU) Machei, general counsel．Spooner (Maciej Szpunar) Comments were made on the matter, He suggested that the European Court of Justice rule, Platform operators are not liable in this case.

        but, If platform operators fail to enforce geographic restrictions, To provide content where it is not licensed from the relevant rights holder, Or deliberately implement ineffective geoblocking, Operators are still liable.

        background

        The action involves Grand Production (A Serbian company, Entertainment television programmes are produced and broadcast in Serbia by local broadcasters) with GO4YU (Another Serbian company, The company manages an Internet streaming platform accessible from Serbia and beyond) Dispute between.

        GO4YU Obtained in Serbia and Montenegro Grand Production License of content, But it cannot be provided outside those territories. Due to limited permission, GO4YU Outside of these countries yes Grand Production The content is geo-blocked. however, some GO4YU User use VPN Come to visit Grand Production Content of, To circumvent geoblocking.

        Grand Production According to, GO4YU Ben should have been aware of all this. In addition, It is also available in Austria without a license Grand Production Content of.

        Following a series of applications for temporary injunctions, The case has gone to Austria's Supreme Court. The Supreme Court decided to suspend the proceedings, And asked the European Court of Justice for clarification "On the information society harmonizing certain aspects of copyright and related rights 2001/29/EC Number instruction" (InfoSoc instruction) The first 3 article (1) How do the concepts communicated to the public in the paragraph relate to such situations at issue in state proceedings.

        General Counsel's opinion

        In a recent opinion, Spooner points out from the start, The Internet is inherently borderless. however, Legally speaking, Because of the territorial nature of rights and laws, It's going to be different. This led to "With the cross-border and global nature of the Internet and territorially restricted rights and obligations (These rights and obligations derive from activities carried out through the Internet) The fundamental contradiction between" .

        so, How to reconcile all this?

        According to the general counsel, Or regionalize the Internet through geoblocking, Or by expanding the jurisdiction of competent authorities to regulate activities on the Internet on a global scale. This case is about that.

        If a user of the platform uses VPN, Whether the platform operator directly constitutes communication to the public?

        The issue of users bypassing geographic restrictions imposed by platform operators to access content that is not licensed in a given region, General counsel said, It should be considered when dealing with the liability of platform operators:

        (a) Whether the right of communication to the public applies; If applicable

        (b) Who should be responsible for the results of actions communicated to the public.

        it (a) terms, Spooner points out, No doubt, The activities in question are acts of communication to the public. He also believes that, If protected content can be obtained from the EU, TV shows are aimed at non-EU countries (Serbia) This fact does not mean that its online broadcasts are not subject to EU copyright law (That is, the copyright laws of the member states concerned, Austria for example) . finally, Spooner concluded that, If the communication is carried out without the consent of the right holder, According to InfoSoc Instruction control 3 article (1) paragraph, Streaming platform operators should bear the responsibility.

        about (b) Term sum VPN Liability issues arising from use, Spooner points out, The European Court of Justice Svensson The case has shown that technical measures to circumvent restrictions on access to copyrighted content constitute to the public (New public) spread.

        Spooner said, Existing cases should be treated in the same way.

        If the right holder (Or its licensee) Geoblocking has been implemented, Their distribution is only for those who access the copyrighted content in the territory of the owner's choice. Therefore, If users of the streaming platform can only obtain permission from the country (Serbia and Montenegro) Access protected content, Then platform operators do not constitute communication to the new public.

        If the user passes VPN Circumvent shielding, It is they, not platform operators, who carry out the communication to the public, Because it is the user rather than the owner of the right to consider someone (Or licensee of its choice) Make protected content available to the public.

        Mr Spooner concluded, unless GO4YU "The deliberate and ineffective use of geoblocking to make the program accessible to users outside the country where it is licensed" , Otherwise, any liability arising therefrom shall be borne by the user himself.

        If there is no impact on the content provided through the platform or its application of technical protection measures, Is promoting platforms and working with platforms communicating to the public?

        About help platform publicity, A person who enters into agreements with and provides support to users but has no say in the content provided by the platform or the technical protection measures implemented by the platform, Do these people make it to the public?

        Mr Spooner said the answer to the question could be inferred from existing case law at the European Court of Justice. What needs to be determined is whether the user intervenes, And the direct link between their role and the availability of protected content.

        Jurisdiction of National courts for temporary injunctions in Internet copyright infringement cases

        Last but not least, In terms of the temporary injunction, Spooner considered questions relating to the jurisdiction of national courts. Whether a national court can prohibit public communication which takes place in a territory other than the territory of that court? In other words, Whether the Austrian court can prohibit its dissemination to the public outside Austria or even worldwide?

        Spooner wasn't sure whether the European Court would accept the issue, Because it has to do with the interpretation of national law rather than EU law.

        comment

        First of all, The European Court of Justice has an opportunity to clarify the law applicable to cross-border copyright disputes between EU members and non-EU members. In terms of trademark and database rights, The European Court of Justice has taken a targeted approach.

        secondly, And the most important one, The case will allow the European Court of Justice to further clarify whether and to what extent platform operators have a vested interest in users themselves (infringement) Activity has direct responsibility. If the European Court of Justice follows Sponer's approach, Right owner in user use VPN Service case can hold the streaming platform accountable. The key issue is the quality of the geographical restrictions imposed by the relevant platforms, And whether the platform "Deliberately applied ineffectually" Geographical limitation of. (Compiled from www. elawnora. com)

translation: Rason group　proofread: Liu Peng

source: China Intellectual Property Protection Network

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