German BGH: Online Intermediary Liability – Does YouTube Perform Acts of Communication to the Public?

Jurriaan van Mil1          Introduction The right of communication to the public (Article 3 Information Society Directive) is well-established in the Court of Justice of the European Union’s (“Court”) case-law: it no longer only encompasses more physical matters, such as broadcasting of television in hotels (SGAE, C-306/05), but also digital matters, such as linking to copyright infringing content (GS Media, C-160/15) and operating a platform on which copyright infringing content is shared (The Pirate Bay, C-610/15). The European Union’s (“EU”) co-legislator is now also involved in the development of the right of communication to the public, namely through the future enactment of a new piece of copyright legislation: the Copyright in the Digital Single Market Directive (“DSMD”). The legislative process of the DSMD has generated a lot of buzz,…

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