Abstract
This chapter discusses the importance of copyright law enforcement as a prerequisite for the emergence of a digital single market. It firstly analyzes the reasons for the current crisis in copyright law enforcement and focuses on the role of Internet intermediaries in this context. The question is examined of whether the Internet intermediary’s liability should have been abandoned 15 years ago with the enactment of the E-commerce Directive, whereby the intermediaries’ safe harbor was established. However, this chapter shows that the law itself, together with an audacious jurisprudential interpretation, leads in practice to the application of a fault-based approach to Internet intermediaries’ liability. As this evolution is obviously not sufficient to resolve the issue of online enforcement of copyright law, this analysis is supplemented by the emerging topic of gag orders. This method, combined with the trends in case law related to pan-European judicial orders, despite being incomplete, nowadays offers the most promising solution towards effective copyright law enforcement.
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Notes
- 1.
2015’s statistics, http://www.internetlivestats.com/Internet-users/.
- 2.
OECD (2012).
- 3.
Communication from the Commission to the European Parliament, the Council, the European Economic and social Committee and the Committee of the regions (2015).
- 4.
The communication states that “The principle, enshrined in the e-Commerce Directive, that Internet intermediary service providers should not be liable for the content that they transmit, store or host, as long as they act in a strictly passive manner has underpinned the development of the Internet in Europe. At the same time when illegal content is identified, whether it be information related to illegal activities such as terrorism/child pornography or information that infringes the property rights of others (e.g. copyright), intermediaries should take effective action to remove it. Today the disabling of access to and the removal of illegal content by providers of hosting services can be slow and complicated, while content that is actually legal can be taken down erroneously. 52.7% of stakeholders say that action against illegal content is often ineffective and lacks transparency. Differences in national practices can impede enforcement (with a detrimental effect on the fight against online crime) and undermine confidence in the online world. As the amount of digital content available on the Internet grows, current arrangements are likely to be increasingly tested. It is not always easy to define the limits on what intermediaries can do with the content that they transmit, store or host before losing the possibility to benefit from the exemptions from liability set out in the e-Commerce Directive.”
- 5.
Parti and Marin (2013).
- 6.
TNS Political & Social (2015).
- 7.
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector.
- 8.
Article 5 (1) states that “Member States shall ensure the confidentiality of communications and the related traffic data by means of a public communications network and publicly available electronic communications services, through national legislation. In particular, they shall prohibit listening, tapping, storage or other kinds of interception or surveillance of communications and the related traffic data by persons other than users, without the consent of the users concerned, except when legally authorised to do so in accordance with Article 15(1). This paragraph shall not prevent technical storage which is necessary for the conveyance of a communication without prejudice to the principle of confidentiality.”
- 9.
Article 29 Data Protection Working Party (2008).
- 10.
General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679).
- 11.
CJEU, Patrick Breyer v Bundesrepublik Deutschland, Case C-582/14, Judgement of 19 October 2016.
- 12.
ECHR, K. U. v. Finland (Requête n° 2872/02), 2/12/2008.
- 13.
ECJ, Promusicae Case C-275/06, Judgment of the Court (Grand Chamber) of 29 January 2008 ECR I-271.
- 14.
CJEU, Scarlet v. Sabam, case C-70/10, Judgement of 24 November 2011.
- 15.
CJEU, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV, case C-360/10, Judgement of 16 February 2012.
- 16.
Paragraphs 62 to 68 of the judgment in Case C-275/06 Promusicae.
- 17.
See par. 50 of the judgment in Case Scarlet v. Sabam.
- 18.
See par. 46 of the judgment in Case Scarlet v. Sabam.
- 19.
See section 230 of the Communications Decency Act and section 512 of the Digital Millennium Copyright Act.
- 20.
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’).
- 21.
See article 16 and recital 40 of the Directive.
- 22.
Urteil des I. Zivilsenats vom 12 July 2012 - I ZR 18/11.
- 23.
Verbiest et al. (2007).
- 24.
Synodinou (2014).
- 25.
European Commission (2012).
- 26.
Article 15.
- 27.
France, Court of Cassation, Google France v. Bac Films, First civil chamber, decision of 12 July 2012. http://www.legalis.net/spip.php?page=jurisprudence-decision&id_article=3461.
- 28.
Akdeniz (2010).
- 29.
United States Court of Appeals for the Ninth Circuit, Lenz v. Universal Music Corp., 801 F.3d 1126 14 September 2015.
- 30.
CJEU, Google Spain v AEPD and Mario Costeja Gonzalez, case C-131/12, Judgment of the Court (Grand Chamber) of 13 May 2014.
- 31.
CJEU, Google France and Google v. Louis Vuitton case C-238/08, Judgment of the Court (Grand Chamber) of 23 March 2010.
- 32.
CJEU, L’Oréal SA and others v. eBay International AG, and others, case C-324/09, Judgment of the Court (Grand Chamber) of 12 July 2011.
- 33.
Bart Van der Sloot (2015).
- 34.
ECLI:NL:RBUTR:2009:BJ6008.
- 35.
BGH GRUR 2004, 860 – Internetauktion I; GRUR 2007, 708 – Internetauktion II; GRUR 2008, 702.
- 36.
BGH GRUR 2010, 633, 634 – Sommer unseres Lebens. See the analysis of Leistner (2014).
- 37.
CJUE, Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retriever Sverige AB, case C-466/12, Judgment of the Court (Fourth Chamber) of 13 February 2014.
- 38.
CJUE, BestWater International GmbH v Michael Mebes, Stefan Potsch, case C-348/13, Order of the Court (Ninth Chamber) of 21 October 2014.
- 39.
At the par.18 of the decision it is possible to read that “En effet, dès lors que et tant que cette œuvre est librement disponible sur le site vers lequel pointe le lien Internet, il doit être considéré que, lorsque les titulaires du droit d’auteur ont autorisé cette communication, ceux-ci ont pris en compte l’ensemble des internautes comme public”, which we can translate by “Indeed , as soon as this work is freely available on the site pointed by the hyperlink, it must be considered that , when the holders of the copyright authorized the communication, these have included the entire Internet as public”.
- 40.
CJUE, GS Media BV v Sanoma Media Netherlands BV, Playboy Enterprises International Inc., Britt Geertruida Dekker, case C-160/15, Judgment of the Court (Second Chamber) of 8 September 2016.
- 41.
De Beer and Clemmer (2009).
- 42.
ECHR, Delfi v Estonia, app no 64569/09, 10 October 2013.
- 43.
ECHR, Delfi v Estonia, app no 64569/09, 16 June 2015.
- 44.
“The Court notes that in the interested person’s opinion, shared by the domestic courts, the prior automatic filtering and notice-and-take-down system used by the applicant company did not ensure sufficient protection for the rights of third persons. The domestic courts attached importance in this context to the fact that the publication of the news articles and making public the readers’ comments on these articles was part of the applicant company’s professional activity. It was interested in the number of readers as well as comments, on which its advertising revenue depended. The Court considers this argument pertinent in determining the proportionality of the interference with the applicant company’s freedom of expression. It also finds that publishing defamatory comments on a large Internet news portal, as in the present case, implies a wide audience for the comments. The Court further notes that the applicant company—and not a person whose reputation could be at stake—was in a position to know about an article to be published, to predict the nature of the possible comments prompted by it and, above all, to take technical or manual measures to prevent defamatory statements from being made public. Indeed, the actual writers of comments could not modify or delete their comments once posted on the Delfi news portal—only the applicant company had the technical means to do this. Thus, the Court considers that the applicant company exercised a substantial degree of control over the comments published on its portal even though it did not make as much use as it could have done of the full extent of the control at its disposal”.
- 45.
ECHR, Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, app no. 22947/13, 2 February 2016.
- 46.
ECHR, Fredrik Neij and Peter Sunde Kolmisoppi (Pirate Bay) v. Sweden, app no 40397/12, 19 February 2013.
- 47.
Mlynar (2014–2015).
- 48.
ITV Broadcasting Limited and others v TV Catchup Limited and others [2015] EWCA Civ 204.
- 49.
Pirate Bay (B 13301-06, 2009-04-17, STOCKHOLMS TINGSRÄTT).
- 50.
BMG RIGHTS MANAGEMENT (US) LLC, and ROUND HILL MUSIC LP v.COX COMMUNICATIONS, INC., and COXCOM, LLC, Civil No. 1:14-cv-1611,12 January 2015.
- 51.
LG München (21 O 6197/14), 10 August 2016.
- 52.
Commission’s press release (2016).
- 53.
Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market, COM(2016)593.
- 54.
Explanatory Memorandum of the proposal (2016), p. 10.
- 55.
The recital 39 states that “Collaboration between information society service providers storing and providing access to the public to large amounts of copyright protected works or other subject-matter uploaded by their users and rightholders is essential for the functioning of technologies, such as content recognition technologies. In such cases, rightholders should provide the necessary data to allow the services to identify their content and the services should be transparent towards rightholders with regard to the deployed technologies, to allow the assessment of their appropriateness. The services should in particular provide rightholders with information on the type of technologies used, the way they are operated and their success rate for the recognition of rightholders’ content. Those technologies should also allow rightholders to get information from the information society service providers on the use of their content covered by an agreement.”
- 56.
- 57.
Malcom (2016).
- 58.
Friedmann (2014).
- 59.
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
- 60.
The article 13 (2) states that the safe harbor “shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement.”
- 61.
Husovec and Peguera (2014).
- 62.
Irish High Court, Sony v UPC Communications Ireland Limited, 27 March 2015.
- 63.
Iglezakis (2012).
- 64.
Directive 2004/48/EC on the Enforcement of Intellectual Property Rights.
- 65.
Article 9 and 11 of the Directive.
- 66.
CJUE, Productores de Música de España (Promusicae) v. Telefónica de España SAU, case C-275/06, Judgement of 29 January 2008.
- 67.
CJUE, Sabam v Scarlet, case C-70/10, Judgement of 24 November 2011.
- 68.
TGI Paris, Ref, N° RG : 16/51682, Judgement of 8 July 2016.
- 69.
CJUE, UPC Telekabel Wien v Constantin Film Verleih GmbH, Wega Filmproduktionsgesellschaft mbH, case C-314/12, Judgement of 27 March 2014.
- 70.
Par.63 of the Decision.
- 71.
Synodinou (2014) Intermediaries’ liability for online copyright infringement in the EU: Evolutions and confusions, op.cit.
- 72.
The European Commission has made the geo-blocking ban a priority in the frame of its Single Digital Market strategy. See, ‘A Digital Single Market Strategy for Europe’, op.cit.
- 73.
District Court of Stockholm, Universal Music, Sony Music, Warner Music, Nordisk Film and the Swedish Film Industry vs Bredbandsbolaget, Judgement of 27 November 2015.
- 74.
District Court of Athens, 4658/2012.
- 75.
District Court of Athens, 13478/2014.
- 76.
District Court of Athens, 10452/2015.
- 77.
Bundesgerichtshof- I ZR 3/14 und I ZR 174/14, Nr. 194/2015, Judgement of 26 November 2015.
- 78.
Brussels Regulation No44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
- 79.
Article 22(4) of the Regulation.
- 80.
ECJ, GAT v. LuK, case C-4/03, Judgment of 13 July 2006.
- 81.
ECJ, Roche v. Primus, case, C-539/03, Judgment of 13 July 2006.
- 82.
Trimble (2009).
- 83.
CJEU, Solvay v. Honeywell Companies, case C-616/10, Judgement of 12 July 2012.
- 84.
CJEU, DHL v Chronopost, case , C-235/09, Judgement of 12 April 2011.
- 85.
The article 5 (1) of the Regulation 1257/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection states that “The European patent with unitary effect shall confer on its proprietor the right to prevent any third party from committing acts against which that patent provides protection throughout the territories of the participating Member States in which it has unitary effect, subject to applicable limitations.”
- 86.
Directive 91/250/EEC, 2009/24/EC.
- 87.
Court of Appeal of The Hague, Technip, 20 September 2010, cited by De Brauw Blackstone Westbroek (2013).
- 88.
Court of Appeal of The Hague, Bang & Olufsen v Loewe, 21 January 2013.
- 89.
CJUE, Eva-Maria Painer v Standard VerlagsGmbH and others, case C-145/10, Order of the Court (Third Chamber) of 7 March 2013.
- 90.
Par.84 of the Judgment.
- 91.
Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open Internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union.
- 92.
European observatory on counterfeiting and piracy (undated) Injunctions in Intellectual Property Rights. p. 4, available at http://ec.europa.eu/internal_market/iprenforcement/docs/injunctions_en.pdf.
References
Akdeniz Y (2010) To block or not to block: European approaches to content regulation, and implications for freedom of expression. Comput Law Secur Rev 26(3):260–272
Article 29 Data Protection Working Party (2008) Opinion 1/2008 on data protection issues related to search engines, WP 148, p.6; (2002) Opinion 2/2002 on the use of unique identifiers in telecommunication terminal equipments: the example of IPv6, WP58, p 3
Commission’s press release (2016) State of the Union 2016: Commission proposes modern EU copyright rules for European culture to flourish and circulate, IP/16/3010
Communication from the Commission to the European Parliament, the Council, the European Economic and social Committee and the Committee of the regions (2015) A Digital Single Market Strategy for Europe. SWD 100 final
De Beer J, Clemmer C (2009) Global trends in online copyright enforcement: a non-neutral role for network intermediaries? Jurimetrics 49(4):375–409. Retrieved from http://www.jstor.org/stable/29763019
De Brauw, Blackstone, Westbroek (2013) The Netherlands: the country of crossborder injunctions in IP. Intellectual Property newsletter, 11/02/2013
European Commission (2012) Public consultation on procedures for notifying and acting on illegal content hosted by online intermediaries. Available athttp://ec.europa.eu/internal_market/consultations/2012/clean-and-open-internetInternet/summary-of-responses_en.pdf
Friedmann D (2014) Sinking the safe harbour with the legal certainty of strict liability in sight. J Intellect Prop Law Pract 9(2):148–155
Husovec M, Peguera M (2014) Much Ado about little – privately litigated internet disconnection injunctions. IIC Int Rev Intellect Prop Compet Law 46(1):10–37
Iglezakis I (2012) The legal struggle in the EU against Online Piracy. In: Synodinou T-E (ed) Codification of European copyright Law, challenges and perspectives. Wolters Kluwer, p 283
Leistner M (2014) Structural aspects of secondary (provider) liability in Europe. J Intellect Prop Law Pract 9(1):75–90
Liability of Internet Intermediaries for Privacy Violations in Europe. JIPITEC – Journal of Intellectual Property, 6 (3)
Malcom J (2016) European Copyright Leak Exposes Plans to Force the Internet to Subsidize Publishers, EFF. Available at https://www.eff.org/deeplinks/2016/08/european-copyright-leak-exposes-plans-force-internetInternet-subsidize-publishers
Mlynar V (2014–2015) A storm in ISP safe harbor provisions: a shift from requiring passive-reactive to active-preventative behavior and back. Intellect Prop Law Bull 19:1
OECD (2012) New sources of growth knowledge-based capital driving investment and productivity in the 21st century. Interim Project findings, May 2012. Available at http://www.oecd.org/sti/50498841.pdf
Parti K, Marin L (2013) Ensuring freedoms and protecting rights in the governance of the Internet: a comparative analysis of blocking measures of illegal Internet content and the liability of ISPs. J Contemp Eur Res 9(1):138–159
Synodinou TE (2014) Intermediaries’ liability for online copyright infringement in the EU: evolutions and confusions. Comput Law Secur Rev 31(1):57–67
TNS Political & Social (2015) Flash Eurobarometer 211 - Cross Border Access to Online Content, EuropeanCommission
Trimble M(2009) Crossborder Injunctions in U.S. Patent cases and their enforcement abroad. Marq Intell Prop Law Rev 13:331
Van der Sloot B (2015) Welcome to the jungle: the liability of internet intermediaries for privacy violations in Europe. JIPITEC 6:211, para 1
Verbiest Th,Spindler G, Riccio GM (2007) Study on the liability of Internet intermediaries, p 17, Available at http://ec.europa.eu/internal_market/e-commerce/docs/study/liability/final_report_en.pdf
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Jougleux, P. (2017). The Role of Internet Intermediaries in Copyright Law Online Enforcement. In: Synodinou, TE., Jougleux, P., Markou, C., Prastitou, T. (eds) EU Internet Law. Springer, Cham. https://doi.org/10.1007/978-3-319-64955-9_11
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