Sketching the Outline of a Ghost: The Fair Balance between Copyright and Fundamental Rights in Intermediary Liability
(2015) 17(6) Info - The journal of policy, regulation and strategy for telecommunications, information and media, p. 72-96
26 Pages Posted: 18 Mar 2017
Date Written: August 29, 2015
Abstract
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. The article engages in a legal theoretical exploration of the way in which this concept has been employed in the case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). On this basis, it reaches the conclusion that fair balance is the appropriate conflict resolution mechanism in cases of clashes between non-absolute human/fundamental rights. The article proceeds to interpret balancing as, in essence, a call for rational judicial deliberation. It then applies balancing to the particular context of intermediary liability for third party copyright infringement to suggest that fair balance excludes the imposition of filtering obligations on intermediaries for the purpose of copyright enforcement, but allows, under certain conditions, blocking injunctions. The article concludes by noting that the way forward should be found in the explicit identification of factors capable of governing the balancing process. The ECtHR already appears to have already embraced this approach, while the CJEU ought to consider following its lead.
Keywords: fair balance, intermediary liability, blocking injunctions, filtering, fundamental rights, human rights, copyright, freedom of expression, protection of personal data
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