European Intermediary Liability In Copyright A Tort Based Analysis

In step with its rapid progress to the centre of modern social, political, and economic life, the internet has proven a convenient vehicle for the commission of unprecedented levels of copyright infringement. Given the virtually insurmountable obstacles to successful pursuit of actual perpetrators, it has become common for intermediaries –providers of internet-related infrastructure and services – to face liability as accessories. Despite advances in policy at the European level, the law in this area remains far from consistently applicable. This is the first book to locate and clarify the substantive rules of European intermediary accessory liability in copyright and to formulate harmonised European norms to govern this complicated topic. With a detailed comparative analysis of relevant regimes in three major Member State jurisdictions – England, France, and Germany – the author elucidates the relationship between these rules and the demands of EU law on fundamental rights and the principles of European tort law. She clearly presents the interrelations between such areas as the following: - accessory liability in tort; - joint tortfeasance; - European fault-based liability: fault, causation, defences; - negligence; - negligence balancing: rights-based or utility-based?; - Germany’s “disturbance liability” (Störerhaftung); - fair balance in human rights; - end-users’ fundamental rights; - The European Commission’s 2015 Communication on a Digital Single Market Strategy for Europe; - The E-Commerce Directive and other relevant provisions; - Safe harbours: mere conduit, caching, hosting; - Intermediary actions: monitoring, filtering, blocking, removal of infringing content; and - application of remedies: damages and injunctions. The strong points of each national system are highlighted, as are the commonalities between them, and the author uses these to build a proposed harmonised European framework for intermediary liability for copyright infringement. She concludes with suggestions for the future possible integration of the proposed framework into EU law. The issue of the liability of internet intermediaries for third party copyright infringement has entered into the political agenda across the globe, giving rise to one of the most complex, contentious, and fascinating debates in modern copyright law. This book offers an opportunity for a re-conceptualisation and rationalisation of the applicable law, in a way which additionally better accounts for the cross-border nature of the internet. It will be of inestimable value to many interested parties – lawyers, internet intermediaries, NGOs, policymakers, universities, libraries, researchers, lobbyists – in matters regarding the information society.

"With the adoption and subsequent national implementation of the E-Commerce Directive's safe harbour regime, the architecture set up in Europe for the civil liability of internet intermediaries for the copyright infringements of others has become two-tiered: at a first stage, it is necessary to examine whether a given intermediary attracts, in its pursuit of a certain activity, liability according to the standards ensconced in the Member States' legislation. If so, in the second instance, the applicability of a safe harbour must be considered. As a result, although it provides a veneer of approximation by immunising intermediaries under certain circumscribed conditions, the Directive does not harmonise the underlying substantive liability norms which determine whether the safe harbours will be necessary or redundant. This leaves ample room for national divergences beyond the safe harbours. The resultant fragmentation strikes a discordant note in the otherwise highly harmonised area of copyright. This book seeks to explore the possibilities for moving EU law forward towards a fully harmonised intermediary liability system in copyright. To this end, after a detailed dissection of the current European rules, it undertakes a comparative analysis of the national regimes in place in three EU Member States, those of England, France and Germany. Subsequently, the relationship between these rules and the national substantive tort principles that underlie them is examined. Ultimately, the book works its way towards proposing a model harmonised framework to govern the area: a truly substantive, truly European comprehensive, cogent, stable and effective analytical structure for intermediary accessory copyright liability."--Samenvatting auteur.

All forms of online communications and interactions between people and companies on the Internet are facilitated by intermediaries – service providers whose decisions and policies have a shaping effect on the Internet, its users and the information shared on it. Today, because such intermediaries employ technologies that go well beyond the mere transmission and storage of information into new realms potentially disrupting existing business models, a rethinking of existing relevant law is called for. The legal analysis and recommendations in this book put the topic of intermediary liability in the perspective of copyright law and offer a vision on how to regulate that liability. In the context of in-depth and up-to-date analyses on EU, US, German and Dutch law, the author discusses such issues and topics as the following: the liability rules in the new Directive on Copyright in the Digital Single Market; liability for the intermediary’s own copyright infringements (primary liability); the intermediary’s responsibility to stop or prevent the infringements of others (secondary liability); the role that fundamental rights play in copyright law and intermediary liability; the rights and interests of copyright owners, intermediaries and users, and how they are protected; notice-and-takedown by service providers; website blocking by Internet access providers; the publisher’s rights and the use of online articles by platforms; legal status of hyperlinks under copyright law; and search engine use of copyrighted materials. A focus on the strengths and weaknesses of existing EU copyright law concerning Internet intermediaries in terms of how future-proof that law is, includes detailed attention to legislation, regulation and case law. With its deeply informed guidance with respect to the methods of regulation in a domain that is heavily influenced by technological developments, this book will be welcomed by policymakers, legislators, academics, judges and practitioners working in the area of copyright law as applied to the Internet. The detailed attention to the extent to which an intermediary can be held liable for copyright infringements in both the EU and the US will prove highly beneficial for in-house counsellors and advisors working for rights holder organizations and intermediary service providers.

With the adoption and subsequent national implementation of the E-Commerce Directive's safe harbour regime, the architecture set up in Europe for the liability of internet intermediaries for third party copyright infringement has become two-tiered: at a first stage, it is necessary to examine whether a given intermediary attracts, in its pursuit of a certain activity, liability according to the standards set out in national law. If so, the applicability of a safe harbour must be considered. As a result, although it provides a veneer of approximation by immunising intermediaries under certain conditions, the Directive does not harmonise the underlying substantive liability norms which determine whether the safe harbours will be necessary or redundant. This leaves ample room for national divergences. The resultant fragmentation strikes a discordant note in the otherwise highly harmonised area of copyright. To address this fragmentation, harmonising momentum has picked up at the European Union (EU) level. In research conducted from 2011 to 2015 at the Institute for Information Law (IViR) of the University of Amsterdam, I explored the options for moving EU law forward towards a fully harmonised intermediary liability system in copyright. This chapter provides a brief summary of that research. It considers both the current European rules and the national regimes in place in three European jurisdictions (UK, France and Germany). Subsequently, the relationship between these rules and the national substantive tort principles that underlie them is examined. Based on the lessons learnt from those tort principles, the chapter works its way towards proposing a model harmonised framework to govern the area: a truly European, cogent, stable and effective structure for intermediary accessory copyright liability.

To better understand the heterogeneity of the international online intermediary liability regime, The Oxford Handbook of Intermediary Liability Online is designed to provide a comprehensive, authoritative and 'state-of-the-art' discussion of by highlighting emerging trends. This book discusses fundamental legal issues in intermediary liability online, while also describing advancement in intermediary liability theory and identifying recent policy trends. Sections I and II provide a taxonomy of internet platforms, a general discussion of possible basis for liability and remedies, while putting into context intermediary liability regulation with fundamental rights and the ethical implications of the intermediaries' role. Section III presents a jurisdictional overview discussing intermediary liability safe harbour arrangements and highlighting issues with systemic fragmentation and miscellaneous inconsistent approaches. Mapping online intermediary liability worldwide entails the review of a wide-ranging topic, stretching into many different areas of law and domain-specific solutions. Section IV provides an overview of intermediate liability for copyright, trademark, and privacy infringement, together with Internet platforms' obligations and liabilities for defamation, hate and dangerous speech. Section V reviews intermediary liability enforcement strategies by focusing on emerging trends, including proactive monitoring obligations across the entire spectrum of intermediary liability subject matters, blocking orders against innocent third parties, and the emergence of administrative enforcement of intermediary liability online. In addition, Section VI discusses an additional core emerging trend in intermediary liability enforcement: voluntary measures and private ordering. Finally, international private law issues are addressed in Section VII with special emphasis on the international struggle over Internet jurisdiction and extra-territorial enforcement of intermediaries' obligations.

A New Framework for Intermediary Liability presents a step-by-step framework for determining when internet intermediaries ought to have a duty to act to prevent copyright infringement on their platforms and services.

Internet intermediaries play a central role in modern commerce and the dissemination of ideas. Although their economic and social importance is well-recognized, their legal liability remains poorly understood, and, until now, no work has specifically addressed their legal responsibility for wrongdoing carried out by third parties using their facilities or platforms. This work fills that gap by providing comprehensive coverage of the legal duties owed by intermediaries and the increasingly complex schemes that regulate their activities. The first part of the work introduces the concept of an internet intermediary, general doctrines of primary and secondary liability, and the European enforcement regime. The second part examines the liability of intermediaries in specific areas of law, with a detailed analysis of the applicable liability rules, and the major English case law, and decisions of the Court of Justice that interpret and apply them. The final part of the work provides guidance on remedies and limitations. Written by an expert author from the intellectual property chambers at 8 New Square, Lincoln's Inn, this is an essential guide for lawyers advising on IP matters and disputes involving internet content.

In the European Union, courts have been expanding the enforcement of intellectual property rights by employing injunctions to compel intermediaries to provide assistance, despite no allegation of wrongdoing against these parties. These prospective injunctions, designed to prevent future harm, thus hold parties accountable where no liability exists. Effectively a new type of regulatory tool, these injunctions are distinct from the conventional secondary liability in tort. At present, they can be observed in orders to compel website blocking, content filtering, or disconnection, but going forward, their use is potentially unlimited. This book outlines the paradigmatic shift this entails for the future of the Internet and analyzes the associated legal and economic opportunities and problems.

"This book delivers a comprehensive examination of the legal systems that regulate the responsibilities of intermediaries for illegal online content in both the EU and the US. It assesses whether existing systems are capable of tackling modern challenges, ultimately advocating for the introduction of a double-sided duty of care, requiring online intermediaries to do more to tackle illegal content whilst also better protecting their users' rights. Key features include: discussion of the fundamental rights implications of increased intermediary responsibility critical appraisal of the current EU system, as laid down in the e-Commerce Directive, and recommendations for reform a detailed examination of US intermediary liability law, namely Section 230 CDA and Section 512(c) DMCA an overview of key developments in law and in practice in relation to all types of illegal online content, including copyright-infringing content, child sexual abuse material, terrorist content and hate speech analysis of the latest regulatory developments, including the Copyright in the DSM Directive, the amended Audiovisual Media Directive and the Terrorist Content Regulation. This incisive book will be a key resource for practitioners and policy makers working on issues relating to intermediary liability and illegal online content. Deploying the relevant case law, legal literature and legislative history of the topic, it will also be of value to students and academics in the field"--

To better understand the heterogeneity of the international online intermediary liability regime, The Oxford Handbook of Intermediary Liability Online is designed to provide a comprehensive, authoritative and 'state-of-the-art' discussion of by highlighting emerging trends. This book discusses fundamental legal issues in intermediary liability online, while also describing advancement in intermediary liability theory and identifying recent policy trends. Sections I and II provide a taxonomy of internet platforms, a general discussion of possible basis for liability and remedies, while putting into context intermediary liability regulation with fundamental rights and the ethical implications of the intermediaries' role. Section III presents a jurisdictional overview discussing intermediary liability safe harbour arrangements and highlighting issues with systemic fragmentation and miscellaneous inconsistent approaches. Mapping online intermediary liability worldwide entails the review of a wide-ranging topic, stretching into many different areas of law and domain-specific solutions. Section IV provides an overview of intermediate liability for copyright, trademark, and privacy infringement, together with Internet platforms' obligations and liabilities for defamation, hate and dangerous speech. Section V reviews intermediary liability enforcement strategies by focusing on emerging trends, including proactive monitoring obligations across the entire spectrum of intermediary liability subject matters, blocking orders against innocent third parties, and the emergence of administrative enforcement of intermediary liability online. In addition, Section VI discusses an additional core emerging trend in intermediary liability enforcement: voluntary measures and private ordering. Finally, international private law issues are addressed in Section VII with special emphasis on the international struggle over Internet jurisdiction and extra-territorial enforcement of intermediaries' obligations.