Book Review: Regulating Hosting ISPs' Responsibilities for Copyright Infringement

After readers about YouTube’s change in copyright policy, readers might be wondering more about the responsibilities of hosting platforms. This book, Regulating Hosting ISPs’ Responsibilities for Copyright Infringement: The Freedom to Operate in the US, EU and China by Jie Wang is about exactly that.

These questions of when an ISP is liable or not continue to be highly relevant. Just last month, for example, questions where referred to the CJEU seeking clarification on the interpretation of Article 14(1) of Directive 2000/31/EC. In particular, the Austrian court asked if the operator of an online video platform, as a host service provider, plays an active role, leading to a loss of the liability privilege, as a result of providing the user with services such as suggesting videos according to subject areas; search by title or content information by means of an electronic directory of content, providing online tips in relation to the use of the service, or linking the videos uploaded by the user with advertisements.

In his book, Wang argues that ISPs are obliged to undertake too many responsibilities against copyright infringement on their platforms, which unjustifiably shifts the burden of enforcement from copyright owners to the ISPs, and this in turn stifles their freedom to operate. One of the key challenges, highlighted in the argument, is the lack of harmonisation of copyright law at an international level. For platforms such as YouTube that operate internationally, Wang argues that this creates legal uncertainty for the hosting provider.

Going back to this Kat's post about YouTube and their potential power to create their own copyright rules, the book argues that there are benefits to self-regulation as it supports the freedom to operate of hosting ISPs. The book also states that the current notice and take down procedures are easily and often abused, resulting in wrongful deletion of content. As a result, Wang suggests that the onus of copyright enforcement should be imposed on the copyright holder, not the ISP.

The book is presented in eight chapters. The first chapter introduces the topic and sets out the questions the book intends to address, namely:

1. Should hosting ISPs be required to keep purely passive so as to fall under the safe harbor provisions?
2. How do the courts interpret the factors that are relevant to decide hosting ISPs' copyright liability under safe-harbour provisions, and
3. Whether that liability criteria is capable of preserving maximum freedom for hosting ISPs, and
4. How notice and take down procedures should be interpreted to avoid imposing unreasonable duties on ISPs,
5. Whether hosting ISPs should be given more duties to ensure the accuracy of notices, and lastly,
6. Whether self-regulation can better preserve the freedom to operate for hosting ISPs?

Chapter two sets out the rules in relation to hosting ISPs' responsibilities for copyright infringement, in particular relating to copyright infringement and the safe-habour provisions in the US, EU and China. Chapter three undertakes a study of the case law in the US, EU and China in order to define and compare the threshold for keeping a hosting ISP passive. It then develops factors that should be taken into account by courts when deciding whether a hosting ISP keeps passive or not.

In a similar fashion, Chapter four considers the case law from the US, EU and China in order to summarise the factors involved in relation to the safe-habour provisions to conclude liability, such as general monitoring, knowledge of infringement, receiving benefits, measures against repeat infringement and inducement.

Chapter five turns to the notice and take down procedures in the US, EU and China, and argues that the application of these provisions is fragmented within the EU. Wang highlights issues such as defining a competent notice, dealing with defect notices, defining expeditiously removed, distributing liability for wrong deletion, and the validity of ex ante notices.

self-regulating Kat nap schedules
Image: Brian Wilkins

Chapter six considers the rules relating to disclosing user identities, summarising the duties imposed on hosting ISPs in the US, EU and China. Chapter seven turns to self-regulation, looking at codes of conduct and second level agreements between ISPs and copyright owners.

Chapter eight provides a summary of the analysis and brings together the conclusions and recommendations put forward in the book, for example Wang argues that taking a different interpretation of the safe-habour provisions and notice and takedown procedures can maximise freedom for ISPs to operate.

This book puts forward some interesting arguments in favour of reducing the burden on ISPs. This Kat does thinks that these points could be more convincing if it had made clearer the need to protect ISPs freedom to operate. In the introduction, Wang explains that ensuring ISPs freedom to operate has social interests such as promoting e-commerce. However, this could also be an argument for why copyright material should be protected online, would monetising copyright material online not be considered e-commerce? Wang also mentions that efficiency of the internet is another justification for ensuring ISPs freedom to operate, perhaps this could be more compelling if it had included a consideration of freedom of expression.

This book would appeal to academics, practioners and policy makers who are interested in ISP liabilty.

Published by Springer
eBook, ISBN 978-981-10-8351-8: £79.50
Hardcover, ISBN 978-981-10-8350-1: £101.00
Softcover, ISBN 978-981-13-4130-4: £99.99
Also available on Amazon