Criteria for classifying streaming platforms as information intermediaries in case of violation of copyright and related rights on the Internet

The rapid development of technologies, including high-speed and public Internet, has led to the emergence and development of entertainment Internet services.

One of the types of such services has become the so-called streaming platforms that provide online streaming of content. Among the most popular streaming platforms are YouTube (video streaming), Apple Music and Spotify (music streaming).

The more popular such platforms become, the more media content is placed on them, which increases the risk of infringement, first of all, of copyright and related rights.

The most common violations of rights in relation to such results of intellectual activity as musical works (with and without text), performances, phonograms and audiovisual works. Cases of violation of rights to other objects of copyright and related rights are not rare.

The ability for any registrant to upload content (for example, on YouTube) creates additional risks of inappropriate content, which is why some platforms often use the so-called “digital fingerprint system” to prevent such violations. For example, this system works on the YouTube streaming platform: “it is a copy of an audio or video file that is used to search for matches in the Content ID. It is part of an entity and one of three elements that represent your intellectual property in YouTube 's rights management system. Viewers digital prints are not available”.

Content ID system allows content owners to find videos where such content is used and monetize such videos, receiving income from them, or block such videos.

Having a digital fingerprint system could be one of the most effective solutions for Google LLC (which owns the YouTube streaming platform ), which is most likely interested in reducing the number of conflicts with copyright holders, including those flowing into litigation.

However, not every streaming platform has the technology of a digital fingerprint system. In addition, even the presence of such a system cannot completely protect the platform from the claims of copyright holders.

So, in accordance with information from the official website of the courts of general jurisdiction in Moscow, in 2021 more than ten lawsuits against Google LLC were considered in the Moscow City Court for infringement of exclusive copyright and related rights on the YouTube streaming platform.

A similar situation exists with other streaming platforms, including Russian ones - VK Music (formerly BOOM), Yandex.Music (against which many disputes are also considered by arbitration courts).

The most common requirement for foreign platforms is the requirement to prohibit the creation of technical conditions that ensure the placement, distribution and other use of the object (s) of copyright/related rights on the website page of the Internet information and telecommunication network (for example, case No. 3-0616 / 2021 considered by the Moscow City Court).

Russian companies often, in addition to the above requirement, are required to recover compensation.

This circumstance is due to the fact that it is difficult to enforce a decision of a Russian court to recover compensation from a foreign company outside of Russia: this is possible , for example, if there is an international agreement between the Russian Federation and the state in whose territory the execution of the judgment is supposed to be enforced, which provides for the possibility of mutual execution of judgments.

One of the circumstances classically investigated by the court in such cases is the presence/absence of the defendant's status of an information intermediary.

As stated in Part 4 of Article 1253.1 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), “ An information intermediary who, in accordance with this Article, is not liable for violation of intellectual property rights, may be required to protect intellectual property rights (paragraph 1 of Article 1250 , paragraph 1 of Article 1251, paragraph 1 of Article 1252 of this Code) not related to the application of measures of civil liability, including the removal of information that violates exclusive rights, or the restriction of access to it.

Based on the interpretation of the above provision, it seems that when considering a case in which the owner of a streaming platform is required solely to restrict access to content that violates exclusive rights, the examination of the issue of classifying such a person as an information intermediary should not be carried out by the court, since it is not included in the subject of proof due to the fact that it does not affect the possibility of satisfying the claims.

However, the judicial practice of the Moscow City Court goes in a different direction. For example , let's consider case No. 3-1485/2020, in which demands were made and then satisfied to prohibit the defendant from creating technical conditions that ensure the placement, distribution and other use of musical works posted on the information and telecommunications network "Internet" according to those specified in statement of claim electronic links.

Despite the above, the court on page 6 of the decision of 12/09/2020 concludes: “the defendant ... being a domain name hosting provider ..., performs the functions of an information intermediary that ensures the possibility of posting and transmitting the content of the specified site on the Internet information and telecommunications network, and as a hosting provider, it may be required to prohibit the creation of technical conditions that ensure the placement, distribution and other use of works that are the results of intellectual activity, since it is the hosting provider that is the person providing the opportunity to post material or information necessary to obtain it using information and telecommunications network, that is, the information intermediary specified in Art. 1253.1 of the Civil Code of the Russian Federation ”.

A similar conclusion is made by the First Court of Appeal of General Jurisdiction with its Ruling in the above case dated 05/12/2021: “ Since the claims are filed against the defendant, who is a hosting provider ( information intermediary), and consist in prohibiting the defendant from creating the Internet information and telecommunications network on the website” technical conditions that ensure the placement, distribution, access and any other use of the protected object…”.

Arbitration courts take a more detailed approach to examining the issue of the presence / absence of the status of an information intermediary for the defendants in such cases, conducting a study of this issue, first of all, if material claims were made against the defendant.

The criteria according to which a person can be attributed to an information intermediary are established in paragraphs 2 and 3 of Article 1253.1 of the Civil Code of the Russian Federation:

The information intermediary that transmits material in the information and telecommunication network is not responsible for the violation of intellectual rights that occurred as a result of this transfer, while simultaneously observing the following conditions:

1. he is not the initiator of this transfer and does not determine the recipient of the specified material;
2. he does not change the specified material during the provision of communication services, with the exception of changes carried out to ensure the technological process of transferring the material;
3. he did not know and should not have known that the use of the corresponding result of intellectual activity or means of individualization by the person who initiated the transfer of material containing the corresponding result of intellectual activity or means of individualization is unlawful.

Also, the information intermediary that provides the opportunity to post material in the information and telecommunication network is not responsible for the violation of intellectual rights that occurred as a result of the material being placed in the information and telecommunication network by a third party or at his direction, while the information intermediary complies with the following conditions:

1. he did not know and should not have known that the use of the corresponding result of intellectual activity or means of individualization contained in such material is unlawful;
2. if he receives a written statement from the copyright holder about the infringement of intellectual rights indicating the page of the site and (or) the network address on the Internet on which such material is posted, he promptly took the necessary and sufficient measures to stop the infringement of intellectual rights. The list of necessary and sufficient measures and the procedure for their implementation may be established by law.

In addition to the above criteria, the Supreme Court provided the following clarifications (set out in paragraph 77 of the Decree of the Plenum of the Supreme Court dated April 23, 2019 No. 10 “On the Application of Part Four of the Civil Code of the Russian Federation” (hereinafter referred to as the Decree No. 10)): Article 1253.1 of the Civil Code of the Russian Federation are an exception to the rules established by paragraph 3 of Article 1250 of the Civil Code of the Russian Federation on the application of liability measures (in the form of indemnification and payment of compensation) for infringement of intellectual rights committed by the infringer in the course of his entrepreneurial activity, regardless of the fault of the infringer. Whether a particular person is an information intermediary is established by the court, taking into account the nature of the activities carried out by such a person (paragraph 2 of clause 77 of Resolution No. 10).

As stated in paragraph 78 of Decree No. 10, the site owner independently determines the procedure for using the site (paragraph 17 of Article 2 of the Federal Law of July 27, 2006 N 149-FZ "On Information, Information Technologies and Information Protection"), so the burden of proof is that the material, including the results of intellectual activity or means of individualization, is posted on the site by third parties, and not the site owner and, accordingly, the latter is an information intermediary, lies with the site owner. In the absence of such evidence, it is presumed that the site owner is a person directly using the relevant results of intellectual activity or means of individualization.

If the site owner makes changes to the material posted by third parties on the site that contains the results of intellectual activity or means of individualization, the resolution of the issue of classifying him as an information intermediary depends on how active he played in the formation of the posted material and (or) whether he received income directly from the misplacement of material. Significant processing of the material and (or) receipt of the indicated income by the site owner may indicate that he is not an information intermediary, but a person directly using the relevant results of intellectual activity or means of individualization.

According to the legal position of the Supreme Arbitration Court of the Russian Federation, expressed in the decisions of the Presidium dated December 23, 2008 No. 10962/08 and dated November 01, 2011 No. 6672/11, the courts should take into account the degree of involvement of the information control and modify its content.

The information intermediary is not responsible for the transmitted information if it does not initiate its transfer, does not select the recipient of the information, does not affect its integrity, and also takes preventive measures to prevent the use of objects of exclusive rights without the consent of the copyright holder.

In this regard, when considering similar cases, the courts need to check:

• whether the information intermediary received profit from activities related to the use of the exclusive rights of other entities, which was carried out by persons using its services;
• whether there are restrictions on the amount of posted information, its availability for an indefinite range of users, the presence in the user agreement of the user's obligation to comply with the legislation of the Russian Federation when posting content and the unconditional right of the provider to remove illegally posted content;
• the absence of technological conditions (programs) that contribute to the violation of exclusive rights, as well as the availability of special effective programs that allow you to prevent, track or delete posted works. (Resolution of the Intellectual Property Court in case No. А19-28503/17).

Based on the foregoing, the presence of a digital fingerprint system (together with other criteria) may affect the recognition of the owner of the platform as an information intermediary.

As for the profit criterion, as the Intellectual Property Rights Court pointed out in the Ruling dated 07.07.2021 in case No. А40-78274/2020, it applies not only to websites, but also to applications, even if its owner receives profit from providing access to additional functionality: “ Based on the above explanation, and also taking into account the fact that the company receives income from providing access to additional functionality of the application, which may include unlicensed content, it cannot be recognized as an information intermediary , whose liability for violation of exclusive rights is limited by the norms of Article 1253.1 of the Civil Code of the Russian Federation . Accordingly, the Court for Intellectual Property Rights further concludes that “the norms of Article 1253.1 of the Civil Code of the Russian Federation were not subject to application to the relations in question. The application by the court of appeal of these norms and the recognition of the defendant as an information intermediary is a significant violation of the norms of substantive law.

Summarizing the above, when resolving the issue of the status of a streaming service in case of violation of copyright and related rights on the Internet, the above criteria play a significant role, and are used by the courts to resolve such cases in aggregate. At the same time, it seems that in order to be recognized as an information intermediary, a streaming service (its owner) must meet all the specified criteria.