Harmonising Intermediary Copyright Liability in the EU: A Summary

Abstract

With the adoption and subsequent national implementation of the E-Commerce Directive’s safe harbour regime, the architecture set up in Europe for the liability of internet intermediaries for third party copyright infringement has become two-tiered: at a first stage, it is necessary to examine whether a given intermediary attracts, in its pursuit of a certain activity, liability according to the standards set out in national law. If so, the applicability of a safe harbour must be considered. As a result, although it provides a veneer of approximation by immunising intermediaries under certain conditions, the Directive does not harmonise the underlying substantive liability norms which determine whether the safe harbours will be necessary or redundant. This leaves ample room for national divergences. The resultant fragmentation strikes a discordant note in the otherwise highly harmonised area of copyright. To address this fragmentation, harmonising momentum has picked up at the European Union (EU) level.

In research conducted from 2011 to 2015 at the Institute for Information Law (IViR) of the University of Amsterdam, I explored the options for moving EU law forward towards a fully harmonised intermediary liability system in copyright. This chapter provides a brief summary of that research. It considers both the current European rules and the national regimes in place in three European jurisdictions (UK, France and Germany). Subsequently, the relationship between these rules and the national substantive tort principles that underlie them is examined. Based on the lessons learnt from those tort principles, the chapter works its way towards proposing a model harmonised framework to govern the area: a truly European, cogent, stable and effective structure for intermediary accessory copyright liability.

Keywords: copyright, accessory liabiity, secondary liability, intermediary liability, safe harbours, filtering