Sketching the outline of a ghost: the fair balance between copyright and fundamental rights in intermediary third party liability

Abstract

Purpose – The purpose of this article is to analyse the concept of a fair balance between conflicting fundamental rights in the context of intermediary liability for third party copyright infringement. Design/methodology/approach – European Legal Method. Findings – Fair balance is the appropriate conflict resolution mechanism in cases of fundamental rights clashes. Balancing is in essence a call for rational judicial deliberation. In intermediary liability, balancing excludes the imposition of filtering obligations on intermediaries for the purpose of copyright enforcement, but allows blocking. Originality/value – An in-depth look at a complicated, vague and underdeveloped area of law with significant practical effect.