In recent years, Europe's highest courts have searched for the answer to the problem of intermediary liability in the notion of a 'fair balance' between competing fundamental rights. At the same time, the 'notice-and-takedown' system, which first emerged as a solution to intermediary liability in the 90s, has spread across the globe, transforming along the way into an assortment of 'notice-and-action' variants that differ from country to country. In this article, we seek to examine how both these approaches to the intermediary liability question can be usefully combined. Interpreting 'fair balance' as a call for compromise, we propose a move away from the traditional 'horizontal' approach of the EU's safe harbour regime, towards a more 'vertical' scheme, whereby distinct 'actions' are tailored to diverse wrong-doings: notice-and-notice for copyright, notice-wait-and-takedown for defamation and notice-andtakedown and notice-and-suspension for hate speech. Notice-and-judicial-take-down can function as a complementary all-purpose solution. Automatic takedown and notice-and-staydown are applicable exclusively to child pornography. We suggest that the resulting calibrated system can contribute to achieving a truer 'fair balance' in this difficult area of law.
The recently proposed new Copyright Directive 1 was released on 14 September 2016. It has been described as the pillar of the copyright package promised by the European Commission (EC), to be delivered before the end of Mr. Juncker's mandate, i.e. before the end of 2019. In its Communication of 6 May 2015, 2 the EC had stressed "the importance to enhance cross-border access to copyrightprotected content services, facilitate new uses in the fields of research and education, and clarify the role of online services in the distribution of works and other subject-matter." 3 The proposed Copyright Directive is thus a key measure aiming to address two of these three issues.We will concentrate on the third issue, carefully examining the text of both the explanatory memorandum and the Directive itself, in an attempt to assess whether it achieves these aims. We hope that this exercise will prove useful for the debate that has now begun both in the European Parliament and in the Council. We will begin with a brief assessment of the explanatory memorandum and then focus on the articles and recitals of the proposed Copyright Directive.
This chapter reviews the lessons of European tort law for intermediary liability in copyright in order to plot a path towards the European harmonization of the area. In the absence of a complete EU framework for intermediary accessory copyright liability, Member States currently rely on home-grown solutions. This chapter examines three examples of such solutions: those of the UK, France, and Germany. The selected national jurisdictions represent three major tort law traditions of Europe. The analysis reveals three cross-jurisdictional approaches to intermediary liability in copyright: intra-copyright solutions, tort-based solutions, and injunction-based solutions. On the basis of these options, and taking into account the lessons of existing projects on the harmonization of European tort law, as well as the case law of the Court of Justice of the European Union, the chapter proposes a framework for European intermediary liability in copyright. As the chapter explains, this is informed by existing EU and national law on the copyright, tort, and fundamental rights level.
scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.