In the last week, Viacom has lost its three-year old legal battle with YouTube after a New York Federal Court ruled that the video sharing website had not infringed the media giant’s copyright. The owner of MTV Networks and the Paramount film studio had been seeking $1 billion (€814.7 million) in damages.
The case had begun when Viacom accused YouTube of running “tens of thousands” of video clips that had been uploaded without permission. In the intervening period other actions were launched, including one by the Premier League, which was dismissed as a result of Wednesday’s ruling. Simultaneously broadcasters began to partner with YouTube, broadcasters such as the BBC and Channel 4 launching their own ‘channels’ on the site.
After this groundbreaking news about the copyright issues, we reached the former ECTA chairman, a telecom and internet regulatory specialist, Innocenzo Genna to consult about the decision. You can read below our e-mail interview with Mr Genna.
Turk Internet: As we see from Viacom decision and Italian case pre-decision, the notion of “piracy”, “privacy” and the appliance of legal enforcements differ from country to country. What is the main reason for these different practices and do you think is there enough collaboration between regulators?
Innocenzo Genna: This is a matter of judges, not regulators. Although there is an harmonized legal framework, decisions may be different because national judges in different countries may interpret the same rule in different ways. There is no mechanism for national judges to collaborate between them, it is not easy, because judges must be independent and autonomous.
The instrument to avoid such kind of fragmentation is to continue to harmonize as much as possible national legislations and provide national judges with European guidance, through guidelines, communications or recommendations, to help them to apply rules in a consistent ways. As a last resort, national judges may require an interpretative ruling from the European Court of Justice. The interpretative sentences of the European Court oblige national judges to follow the same interpretation of the rules.
Turk Internet: There is also a much debated “three-strikes” copyright enforcement in UK. Germany had a similar approach and Australia announced it will adopt that, too. Isn’t that a harsh decision to load a heavy burden on ISP’s shoulders on piracy and leave YouTube like web-sites out of this?
Innocenzo Genna: The three strikes approach has been promoted in France and then in UK and Ireland (however, in Ireland is just an agreement between right-holders and the dominant ISP, it is not a legislation). Not in Germany, as far as I know. There are discussion in other European countries.
It is a wrong approach because it is a repressive reaction, while the phenomena of piracy derives mainly from the absence on legal content and innovative content business in the Internet. Piracy should therefore be fought through the creation of a market for legal content, not with repression against Internet users.
The above said, the three strikes approach concerns disconnection of subscribers from the Internet. This has nothing to do with Youtube, since Youtube has no technical means to disconnect a “pirate” from the Internet.
Turk Internet: Do you think there could be some kind of a middle-way, may be an arrangement between copyright advocates and YouTube like content providers?
Innocenzo Genna: Youtube has developed a specific technology which allow to detect immediately pirated content posted on its platform. Many right-holders use this, it is a good form of cooperation. Other right-holders do not use this technology, because they just want Youtube to close its business, like it happened with Napster and others.
Turk Internet: And as my last question, but not the least important, do you think YouTube is fulfilling its legal responsibilities? If they are, then why do you think it’s still restricted here in Turkey?
Innocenzo Genna: Pursuant to art. 14 of EC Directive 2000/31 Youtube is obliged to remove any illicit content posted on its platform upon notification from the legitimate right-holders or upon order of the public authority. This is the way it works in Europe and US, and it works!
I do not know why in Turkey things are going differently. I am sure that Youtube will be willing to remove illicit content posted on its platform anytime Turkish authorities or Turkish right-holders ask for that. Therefore, closing completely Youtube seems to me an excessive and disproportionate measure.
You can read the Turkish translation of this interview by clicking Innocenzo Genna : Korsanla Savaşın Yolu, Baskı değil, yasal İçerik için Pazar Oluşturmaktır..
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