TikTok cannot choose between licensing and blocking
The plaintiff is Nikita Ventures GmbH, a Berlin-based film rights distributor and operator of YouTube channels – specialising in the worldwide licensing of films via online platforms. It sueds TikTok (the online platform for creating and sharing videos, which are primarily generated and uploaded by users) for unauthorized publication of ten films on TikTok. The plaintiff offered TikTok to license these for a fee. However, no contract was concluded. The plaintiff is of the opinion that TikTok evaded the negotiations and “refused” to conclude a license agreement. TikTok argues that “service providers have no obligation to accept any offer from a rights holder” and has removed the films in question from the platform.
The plaintiff asserted claims for injunctive relief, information and damages under §§ 97 Abs. 1, 2, 94 Abs. 1, 19a, 15 Abs. 2 UrhG (Act on Copyright and Related Rights), §§ 1 Abs.2, 21 Abs. 1 UrhDaG (Act on the Copyright Liability of Online Content Sharing Service Providers) §§ 242, 259 BGB (German Civil Code).
TikTok's delaying tactics
TikTok did not fulfil its licensing obligation (§ 4 UrhDaG) because it failed to make the best possible efforts to conclude a license agreement. The plaintiff endeavored to meet the defendant’s demands and to provide the requested information. However, TikTok did not show any interest in reaching a mutually beneficial result quickly.
License obligation
The further question of whether TikTok had a functioning technical system for blocking has not to be discussed. TikTok has breached its license obligation (§ 4 UrhDaG) and it is therefore irrelevant whether the requirements for blocking are met (§§ 7, 8 UrhDaG). Service providers must fulfil the obligations from §§ 4, 7 – 11 UrhDaG cumulatively.
To the point
The new Act on the Copyright Liability of Online Content Sharing Service Providers (UrhDaG) does not allow online providers to sit back and negotiate. The rights holder does not have to tolerate stalling. Whether the platform operator has done its best to obtain a license is assessed according to the principle of proportionality.
