The Federal Court of Justice (Der Bundesgerichtshof) [official website] delayed a ruling [press release, in German] Thursday in a case concerning potential copyright infringement by streaming platform, YouTube, for uploads by third parties to receive input on the issue from the Court of Justice of the European Union [official website].

The plaintiff in the case is a music producer that has a contract with vocalist Sarah Brightman. The producer brought the case against YouTube for compensation for Brightman’s music uploaded on the platform. The Federal Court of Justice delayed the proceedings based on interpretations of Directive 2001/29/EC [text] “on the harmonization of certain aspects of copyright and related rights in the information society,” Directive 2000/31/EC [text] on electronic commerce, and Directive 2004/48/EC [text] relating to enforcement of intellectual property rights.

The Federal Court of Justice referred a question of whether a platform that makes copyrighted content accessible to the public without consent of the owner qualifies as a “public reproduction of their works” (or “communication to the public of the works” in the English translation) under Directive 2001/29/EC Article 3, Section 1 (see German version of the Directive [Directive text, German]) when:

1. The platform receives advertising revenue and the process to upload a video is automatic and occurs without any review by the operator of the platform,
2. The terms of use of the platform give the operator of the platform a worldwide, non-exclusive and royalty-free license to the videos,
3. The terms of use include language that warns that copyright infringing uses may not be discontinued,
4. The platform gives tools to allow those who own the rights to certain content to work toward blocking videos that infringe on their rights,
5. The platform presents search results based on content-related categories and ranking of videos and allows users to customize recommended videos based on past viewing history
6. And if the operator of the platform has no concrete knowledge that copyright infringing media is available and once that knowledge is confirmed, deletes the media or blocks access to it.

Similarly, the Federal Court of Justice sought clarification under Article 14, Section 1 of Directive 2000/31/EC of whether YouTube’s activity falls within its scope, regarding hosting sites having actual knowledge of illegal activity, need to refer to knowledge of specific illegal activities. Also, the Court sought clarification on the situation referred to in Article 8, Section 3 of Directive 2001/29/EC, right-holders being able apply for an injunction against intermediaries whose services are used by a third party to infringe on a right, where the service provided is essentially storing information posted by a third party.

Lastly, the Court sought clarification of whether YouTube qualified as an “infringer” for purposes of Article 11 and Article 13 of Directive 2004/48/EC allowing an injunction for continuing infringement and damages for infringement.