Harmonizing Intermediary Copyright Liability in the EU: A Summary

Abstract

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.

Introduction to intermediary copyright liability

“…109 The prüfungspflicht is triggered by clear notice (generally from the rightsholder) of alleged infringement, and is essentially a duty to inquire into whether infringements have occurred. 110 The scope of the duty to inquire will depend on what is reasonable under the circumstances. Provided the intermediary responds to clear notices of infringement by taking reasonable measures to prevent copyright infringement, it will not be liable.…”

¿Matar al mensajero? La responsabilidad de las redes sociales y los usuarios por difamación

“…4. STEDH de 18 de diciembre de 2012, asunto 3111/10, Ahmet Yildirim c. Turquía, 54;Packingham v. North Carolina, 137 U.S. 1730(2017, pág. 1735.…”

Addressing Evolving Digital Piracy Through Contributory Liability for Copyright Infringement: The Mobdro Case Study

“…The US substantive copyright law has developed a thorough concept of secondary civil liability for copyright infringements, the two main branches of which are contributory liability and vicarious liability; however, substantive copyright laws in Europe are rather shy in regulating indirect copyright infringement and legal liability for it. European scholars have also not adopted a uniform concept or nomenclature for secondary liability for copyright infringement, with some resorting to overly narrow interpretations 1 which may exclude contributors from secondary liability for copyright infringement. This is representative of the overwhelming focus of European jurisprudence on the liability of online intermediaries, which may prove increasingly insufficient in view of recent directions in the evolution of digital piracy, i.e., large-scale commercial copyright infringement online.…”

“…2 The crime of the Pirate Bay operators was contributing to the copyright infringement committed by the users of the Pirate Bay. The Pirate Bay perpetrators were found liable for the civil damages caused to 1 See, e.g., the definition of "secondary liability" in Husovec, M. (2013) Injunctions against Innocent Third Parties: The case of Website Blocking. JIPITEC, 4, p. 118, para.…”