Tag Archives: fair balance

EU Copyright Reform: Outside the Safe Harbours, Intermediary Liability Capsizes into Incoherence

In the following piece, Christina Angelopoulos, lecturer in intellectual property law at the University of Cambridge, analyses the aspects of the Commission’s new proposal for the digital single market directive that are relevant to intermediary liability. The post was originally published on the Kluwer Copyright Blog.

As has by now been extensively reported, on 14th September the European Commission released its new copyright reform package. Prominent within this is its proposal for a new Directive on Copyright in the Digital Single Market.

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The proposal contains an array of controversial offerings, but from the perspective of this intermediary liability blogger, the most interesting provision is the proposed Article 13 on ‘Certain uses of protected content by online services’. This is highly problematic in a number of different ways.

The Supposed Problem

As the Communication on a fair, efficient and competitive European copyright-based economy in the Digital Single Market (which was released in parallel to the proposal) explains, the new Article 13 is intended to address what in Brussels parlance over the past year has come to be termed the ‘value gap’. This refers to the idea that revenues generated from the online use of copyright-protected content are being unfairly distributed between the different players in the value chain of online publishing. A distinction is usually drawn in this regard between ad-funded platforms, such as YouTube, Dailymotion and Vimeo, and subscription-funded platforms, such as Spotify or Netflix. While the latter require the consent of copyright-holders to operate legally, the business model of the former revolves around user-created content (UCC). As a result, they tend to focus not on copyright licensing, but on notice-and-takedown systems, which allow them to tackle any unwanted infringements of copyright snuck onto their websites by their users. [To continue reading this post on the Kluwer Copyright Blog, click here.]

C-494/15 – Tommy Hilfiger: No Difference between Online and Real World Marketplaces for IP Enforcement

In the following piece, Christina Angelopoulos, post-doc researcher at the Information Law and Policy Centre of the University of London, analyses the recent judgment of the CJEU in case C-494/15 Tommy Hilfiger. The post was originally published on the Kluwer Copyright Blog.

On 7 July 2016, the CJEU (Court of Justice of the European Union) handed down its decision in Tommy Hilfiger (case C-494/15). The case concerned the imposition of an injunction on Delta Center, a company that sublets sales areas in the “Prague Market Halls” (Pražská tržnice) to traders, after it was found that counterfeit goods were sold in the marketplace.

The requested injunction would require that Delta Center refrain from: a) renting space to persons previously found by the courts to have engaged in trademark infringement; b) include terms in their rental contracts that oblige market traders to refrain from infringement; and c) publish an apology for past infringements by third party traders. [To continue reading the rest of the post on the Kluwer Copyright Blog, click here.]

Notice-and-Fair-Balance: the Law of Fundamental Rights in European Intermediary Liability

On 11 April 2016, Christina Angelopoulos of the Information Law and Policy Centre, Institute for Advanced Legal Studies and Stijn Smet of the Human Rights Centre, Ghent University gave a presentation at the BILETA Conference (which took place this year at the University of Hertfordshire) on their paper entitled “Notice-And-Fair-Balance: the Law of Fundamental Rights in European Intermediary Liability”.

The abstract of the presentation (which can be found on the BILETA website here) is as follows:

Abstract

Notice-and-action has been the preferred answer to questions of intermediary liability for alleged unlawful online information for over 15 years: first adopted, in the form of “notice-and-takedown”, in the US in 1998 as part of the DMCA safe harbours , the concept quickly spread across the globe in a variety of different mutations, including “notice-and-notice” (adopted in Canada), “notice-and-disconnection” (pioneered in France), notice-and-stay-down (still popular in Germany), “notice-and-judicial-take-down” (encountered in Chile) and notice-wait-and-takedown (a Japanese invention).

Following the general trend, the EU introduced a basic “notice-and-takedown” regime in 2000 by means of the hosting immunity of Article 14 of the E-Commerce Directive. While this provision has proven undoubtedly useful, it is also sparse on the details, creating legal uncertainty and undermining its harmonising power. In addition, it applies horizontally, i.e. to all areas of law, leaving no room for appropriate gradations. As a result of its alleged shortcomings, calls to reformulate the E-Commerce system into a more elaborate notice-and-action procedure have been made. These calls seem to have found the Commission’s ear: a series of Communications (most recently in December 2015 on “a modern, more European copyright framework”) show the EU’s interest in developing a more intricate European notice-and-action system.

At the same time, the European discussion on intermediary liability has moved from the dissection of processes to the analysis of their relationship with underlying law. Particular emphasis has herein been placed on the relevance of fundamental rights. The question of intermediary liability for users’ activities of copyright infringement, defamation, hate speech or child pornography has been reinterpreted as a quintessential question of fundamental rights clashes. The notion of a “fair balance” between competing fundamental rights has emerged as central to addressing such clashes in the relevant case law of Europe’s highest courts – the CJEU and the ECtHR. Although the amassing case law has begun to put some flesh on the bones of the once skeletal references to this “fair balance”, considerable gaps remain, while no general standard is discernible.

Based on the authors’ PhD projects, respectively on the harmonisation of European intermediary liability and the resolution of conflicts between human rights, this paper shall aim to bring some much-needed clarity to the debate by answering the following questions: where might the fair balance lie in intermediary liability cases and can notice-and-action measures help secure that balance? To this end, we will first provide legal theoretical insights on the precise meaning of the notion “fair balance”. We will argue that achieving a “fair balance” in intermediary liability cases requires a search for a viable compromise between all fundamental rights at stake, instead of a solution under which one right “trumps” the others. Having set the theoretical stage, we will then proceed to examine various notice-and-action mechanisms to determine whether or not they contribute to reaching the desired compromise. In doing so, we will differentiate between distinct situations, arguing – for instance – that notice-and-notice suffices in copyright cases, while notice-and-takedown is suitable for defamation cases and a no notice/automatic takedown obligation is appropriate for child pornography.

The slides are available below.

Bileta – Smet Angelopoulos

The full paper will be published later this year.