“uploaded III”

• (a) If the operator of a share hosting platform, despite having been informed by the rightholder that protected content has been unlawfully made available to the public via its platform, does not immediately take the necessary measures to prevent access to this content by deleting or blocking it, it itself makes an act of communication to the public within the meaning of Sec. 85(1) first sentence, case 3, Copyright Act in conjunction with Art. 3(2)(b) of Directive 2001/29/EC. For the area fully harmonised by Art. 3(2) of Directive 2001/29/EC, liability as a perpetrator therefore replaces the previous “interferer” liability (Störerhaftung) (following decision of the CJEU, 22 June 2021 – C-682/18 and C-683/18, GRUR 2021, 1054 paras. 85 and 102 = WRP 2021, 1019 – YouTube and Cyando [IIC 52:940–941 (2021), https://doi.org/10.1007/s40319-021-01094-2]).

• (b) The requirements already applicable to “interferer” liability (Störerhaftung), which are to be applied to the indication of a clear infringement, are transferable to the examination of communication to the public.

• (c) The infringement of the obligation to review, triggered by a notice from the rightholder, leading to the operator of a share hosting platform’s liability as perpetrator on the grounds of a communication to the public within the meaning of Sec. 85(1) first sentence, case 3 Copyright Act in conjunction with Art. 3(2)(b) of Directive 2001/29/EC, includes, in addition to the duty to immediately prevent access to the specific file complained of and to further similar infringing content already uploaded at the time of the complaint, the duty to take precautions to prevent further similar infringements in the future.