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Finding a safe harbour? A mission that can wait |
The Ecommerce Directive envisages a number of immunities (known as safe harbours) that shield
internet service providers (ISPs) from liability for third-party content that
they transmit, cache or host.
In the context of
its Digital Single Market Strategy [Katposts here] the EU Commission is currently engaged in a
discussion of whether the liability principles and rules contained in that EU
directive for the benefit of ISPs should be amended [the next EU copyright package is awaited for release in the second half of September - see here for a leaked version].
With specific
regard to copyright, one of the principal concerns relates to a particular type
of ISP, ie hosting providers.
Unlicensed hosting providers have been
increasingly said to invoke the relevant safe harbour immunity in the EU Ecommerce
Directive [Article 14] lacking the conditions for its application. This alleged abuse has
led to a distortion of the online marketplace and the resulting 'value gap' indicated by some rightholders.
A proposal has been recently advanced in France advocating the
removal – at the EU level – of the safe harbour protection for hosting
providers that give access to copyright works. This would be necessary to
enable the effective enforcement of copyright and related rights in the digital
environment, particularly on platforms that disseminate protected content. In particular, the French document considers that the Court of Justice of the European Union (CJEU) has erred in its interpretation and application of relevant principles of online intermediary liability.
I have recently completed a new article [just released as a CREATe Working Paper and due for publication in the European Intellectual Property Review], in which I address some of the points raised by the French proposal.
My main conclusions are that:
- Contrary to the view of the French document, the CJEU has correctly applied relevant provisions in the Ecommerce
Directive;
- The removal of the immunity in Article 14 of the Ecommerce Directive for hosting providers that give access to copyright works would not provide rightholders with significantly greater
protection than the one already enjoyed under the existing legislative
framework, at least as far as their primarily liability is concerned. This is
also because the current understanding of the right of communication to the
public within Article 3 of the InfoSoc Directive does not seem to suggest that intermediaries otherwise protected by the
Article 14 safe harbour could be held primarily liable for the doing of
unauthorised acts of communication to the public.
Overall, the current framework already sets an adequate degree of
protection: what is required is a rigorous application by national courts of
the principles enshrined in the Ecommerce Directive, as interpreted by the CJEU.
Readers' feedback and views are very welcome! My piece is available here.
The statement: "Unlicensed hosting providers have been increasingly said to invoke the relevant safe harbour immunity in the EU Ecommerce Directive [Article 14] lacking the conditions for its application. This alleged abuse has led to a distortion of the online marketplace and the resulting 'value gap' indicated by some rightholders." packs an awful lot in. What I think you mean is that some people seem to be getting away with copyright infringement (and thus depriving owners of their dues) by falsely stating reliance on laws which they are not entitled to rely upon.
ReplyDeleteIs this not how the real world works?
Ashley
Indeed, but some think it should not (or no longer) work this way ... Just look at the leaked draft IA of the EU Commission
ReplyDeleteEleonora, where specifically?
ReplyDeleteA
In relation to how to address the value gap by requiring ISPs to get licensed
ReplyDelete