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New Technology, Big Data and the Law pp 223–248Cite as

Internet Intermediaries and Copyright Enforcement in the EU: In Search of a Balanced Approach

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Part of the book series: Perspectives in Law, Business and Innovation ((PLBI))

Abstract

Ever since the commercialization of the Internet, the role of Internet intermediaries has been of vital importance for the functioning of the globalized electronic market and the innovation technologies of information dissemination in general. The importance of the role of the Internet intermediaries has been reflected in the basic legislative initiatives regarding the Internet worldwide. In Europe, following the example of the Communications Decency Act (CDA) and Digital Millennium Copyright Act (DMCA) in the United States, Articles 12–15 of the E-Commerce Directive aimed to create an immunity regime that would allow the Internet intermediaries to develop their activities without being hindered by the fear of complex liability issues connected with their sensitive role. At the same time, though, it became apparent that Internet intermediaries are playing a pivotal role in the protection of intellectual property rights in an online world, as they are in the best position to either prevent or bring intellectual property infringements to an end. This observation was also reflected in the EU legislation, as Articles 12, 13 and 14 of the E-Commerce Directive, Article 8 of the InfoSoc Directive and Article 9 and 11 of the Enforcement Directive provide for a series of interim measures that allow legal action against Internet intermediaries for alleged copyright infringements by third parties (even if the Internet intermediaries are not liable per se). This chapter will first try to highlight what are the current patterns dictated by the case law of the Court of Justice of the European Union (CJEU) regarding the role of Internet intermediaries in the enforcement of intellectual property rights and then attempt to assess whether these patterns correspond to the legislative motives and purposes behind the respective EU legislation.

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Notes

  1. 1.

    The US courts had to adjudicate on the rules applicable to Internet intermediaries as early as the beginning of the 1990s, in cases such as Cubby v Compuserve 766 F Supp 135 (SDNY, 1991) and Stratton Oakmont, Inc. v Prodigy Services 1995 WL 323710 (N.Y. Sup. Ct., 1995).

  2. 2.

    Internet intermediaries were in fact in favor of legislative initiatives regarding their role in Internet regulation already during the early days of the commercial use of the Internet, pleading for an immunity regime that would allow them to operate without unnecessary or disproportionate legal risks. See to that extend, Edwards (2005), p. 102.

  3. 3.

    Most characteristically, Lessig (2006), pp. 81–137. For a similar account, see Goldsmith and Wu (2008), pp. 65–85.

  4. 4.

    Mostly by offering a wider range of discretion on the production, selection and dissemination of information in comparison to other traditional media, turning thus the users from simple passive receivers to interactive stakeholders. See Wu (2011), pp. 168–203. For an insightful assessment of the particularities of the Internet, see Svantesson (2016), pp. 56–78, who emphasizes the importance of Internet intermediaries by noting (p. 74): “…The fact that intermediaries play a central role in the Internet landscape is little more than a truism and has already been allude to above. However, the role they play is of such central importance that we may indeed conclude that they are as important a feature of the Internet, and Internet regulation, as any other of the characteristics discussed here. After all, we all connect to the Internet via intermediaries (such as the telecommunications companies we contract with), and most of our online activities go via intermediaries (such as Google or Bing search, shopping platforms such as eBay and social media platforms such as Facebook)…”.

  5. 5.

    For the role of Internet intermediaries as private copyright enforcers, see Zittrain (2003), pp. 653–688; Frabboni (2010), pp. 119–146; Bright and Agustina (2013), pp. 120–137.

  6. 6.

    In the words of Marsden (2011), pp. 53–64, the neutral character of the Internet shall be protected by regulations that: “… prevent unregulated non-transparent controls exerted over traffic via DPI equipment, whether imposed by ISPs for financial advantage or by governments eager to use this new technology to filter, censor and enforce copyright against their citizens …”.

  7. 7.

    The two primary provisions of US law, namely section 230 of the “Communications Decency Act” (CDA) and section 512 of the “Digital Millennium Copyright Act” (DMCA), are usually recorded as archetypes of such legislative initiatives, not only because they represent some of the earliest regulations of the kind, but also because many major Internet companies are established in the USA, offering thus the conditions for debates of that kind. For a similar account see Holland et al. (2015), p. 1.

  8. 8.

    For a classification of legislative responses to intermediary liability, see Edwards (2005), pp. 106–113. For a taxonomy of the legislative responses to intermediary liability and their economic effectiveness, see Schruers (2002), pp. 205–264.

  9. 9.

    Reed (2003), pp. 255–265, seems to propose that such a conditional immunity regime could be the basis of a unified global solution in terms of Internet intermediary regulation.

  10. 10.

    Recital 40 of the E-Commerce Directive: “Both existing and emerging disparities in Member States’ legislation and case-law concerning liability of service providers acting as intermediaries prevent the smooth functioning of the internal market, in particular by impairing the development of cross-border services and producing distortions of competition…”.

  11. 11.

    Directive 2000/31/EC of the European Parliament and the Council.

  12. 12.

    Article 12, E-Commerce Directive.

  13. 13.

    Article 13, E-Commerce Directive.

  14. 14.

    Article 14, E-Commerce Directive.

  15. 15.

    As stated in recital 40.

  16. 16.

    On the contrary Sections 512 (c) and (g) of the American DMCA provide for such a system. For a closer scrutiny of the DMCA “notice and take down” system, see Cobia (2009), pp. 387–411.

  17. 17.

    Early commentators have criticized the lack of a European intermediary code of conduct and “notice and take down system” on such a basis. See, e.g., Juliá-Barceló and Koelman (2000), pp. 231–237; Baistrocchi (2002), pp. 111–130.

  18. 18.

    For a neat summary of the basic “notice and take down” issues that would have preferably been unified within the EU, see Edwards and Waelde (2005), pp. 28–36.

  19. 19.

    On the low effectiveness of Member State “notice and take down systems” and a comparative analysis with their international counterparts, see Giblin (2014), pp. 147–210.

  20. 20.

    Directive 2001/29/EC of the European Parliament and the Council.

  21. 21.

    Directive 2004/48/EC of the European Parliament and the Council.

  22. 22.

    As it is explained in Recital 45 of the E-Commerce Directive: “The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kind…”.

  23. 23.

    Recital 59 of the InfoSoc Directive provides that: “In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases, such intermediaries are best placed to bring such infringing activities to an end. Therefore, without, prejudice to any other sanctions and remedies available, right holders should have the possibility of applying for an injunction against an intermediary who carries a third party’s infringement of a protected work or other subject-matter in a network.”

  24. 24.

    See Recital 59 of the InfoSoc Directive (“…The conditions and modalities relating to such injunctions should be left to the national law of the Member States.”) and the almost identical Recital 23 of the Enforcement Directive (“…The conditions and procedures relating to such injunctions should be left to the national law of the Member States …”).

  25. 25.

    See Article 1 (2) of Directive 98/34/EC as amended by Directive 98/48/EC. For a closer inspection of the individual elements of the definition, see Riordan (2016), Chapter 12, Section 2.

  26. 26.

    Husovec & Peguera (2015), p. 13.

  27. 27.

    Such an assumption could be founded on par. 43 in case C-557/07, LSG v. Tele2, where the Court noted: “Access providers who merely enable clients to access the Internet, even without offering other services which users make use of, provide a service capable of being used by a third party to infringe a copyright or related right, inasmuch as those access providers supply the user with the connection enabling him to infringe such rights.”

  28. 28.

    Husovec & Peguera (2015), pp. 13 in fine.

  29. 29.

    See Article 1, E-Commerce Directive.

  30. 30.

    Which states that: “Liability for activities in the network environment concerns not only copyright and related rights but also other areas, such as defamation, misleading advertising, or infringement of trademarks, and is addressed horizontally in 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”) (4), which clarifies and harmonizes various legal issues relating to information society services including electronic commerce. This Directive should be implemented within a timescale similar to that for the implementation of the Directive on electronic commerce, since that Directive provides a harmonized framework of principles and provisions relevant, inter alia, to important parts of this Directive. This Directive is without prejudice to provisions relating to liability in that Directive.”

  31. 31.

    Which provides that: “The Community provisions governing the substantive law on intellectual property, Directive 95/46/EC, Directive 1999/93/EC or Directive 2000/31/EC, in general, and Articles 12 to 15 of Directive 2000/31/EC in particular.” (emphasis added).

  32. 32.

    Case C-70/10, Scarlet Extended, par. 30–35. In the same line, see Van Eecke (2011), p. 1488.

  33. 33.

    Riordan (2016), Chapter 2, Section 2.

  34. 34.

    CJEU, Case C-291/13, Sotiris Papasavvas, par. 38–39.

  35. 35.

    For a closer examination of the intermediaries privileged under the DMCA see Band and Schruers (2002), pp. 295–320; Evans (2004), pp. 445–499; Lemley and Reese (2004), pp. 1345–1434; Walker (2004), pp. 1–23. For an insightful comparative analysis of EU and US law in general see Peguera (2009), pp. 481–512.

  36. 36.

    Joined cases C-236/08 to 238/08.

  37. 37.

    Case C-324/09.

  38. 38.

    For a similarly positive account see Guadamuz (2014), p. 320.

  39. 39.

    Recital 42 of the E-Commerce Directive provides that: “The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored.”

  40. 40.

    Joined cases C-236/08 to 238/08, Google France, par. 113, case C-324/09, L’Oreal v. eBay, par. 112.

  41. 41.

    Kohl (2013), pp. 187–234, has provided some interesting argumentation in pointing out that a mere technical, automated and passive Internet service is not always neutral in the sense of the case law of the Court, using the search engine operation of Google as an underlying example. She nonetheless seems to admit that putting the burden of a primary liability in the shoulders of Google is not an alternative and recognizes that Google is already functioning as a diligent gatekeeper, willing to cooperate with the copyright industry rather than opposing it.

  42. 42.

    Van Eecke (2011), pp. 1481–1484, criticized that all-encompassing approach of the Court that puts at the core of its analysis the neutrality of the role of intermediaries, on the basis that while mere conduits and caching operators are indeed neutral service providers, content hosts must, by their nature, perform actions that presuppose some degree of involvement with the users, even if they must still keep some distance from the latter in order to avoid primary liability. While there is much reasonableness in that analysis, it seems that it misses the core argument of CJEU: the neutral role of the Internet service providers is not to be measured only on their function per se, but it must also be projected on their participation in the production of information. It is the knowledge and control of information that would take them out of the realm of intermediaries not the mere distribution of it, even if they are relatively highly involved in it.

  43. 43.

    CJEU, Joined cases C-236/08 to 238/08, Google France, par. 114 and 120.

  44. 44.

    For the problem of treating search engines as intermediaries, see Bohan (2006), pp. 181–228; Fitzgerald et al. (2008), pp. 103–120; Synodinou (2010). For comparative considerations from the perspective of US law, see Gasser (2006), pp. 201–234.

  45. 45.

    Linking has not yet arrived as a problem of Internet intermediaries before the CJEU. In the recent Svensson (C-466/12) and GS Media cases (C-160/15) the Court examined the problem of linking within the limits of the right to communication to the public of Article 3 InfoSoc Directive. See further on that Buri (2014), pp. 245–255.

  46. 46.

    For a detailed assessment of whether mobile market operators can be treated as intermediaries within Articles 12 to 14 of the E-Commerce Directive, see Jakobsen (2010), pp. 29–52.

  47. 47.

    For the problem of classification of user generated content hosts as intermediaries, see Hoeren (2009), pp. 1–19; Valcke and Lanaerts (2010), pp. 119–131.

  48. 48.

    Case C-484/14.

  49. 49.

    C-484/14, McFadden, par. 49.

  50. 50.

    C-484/14, McFadden, par. 50.

  51. 51.

    See above Sect. 2.2.

  52. 52.

    Recital 48 makes explicitly clear that only host providers might be subject to duties of care, relieving mere conduits and caching operators from such a burden.

  53. 53.

    Case C-484/14.

  54. 54.

    See his opinion on case C-484/14, McFadden, par. 97–100.

  55. 55.

    C-484/14, McFadden, par. 59–63.

  56. 56.

    For a different approach expressed prior to the ruling of the Court in McFadden, see Savin (2013), p. 114.

  57. 57.

    Par. 99 of his opinion on case C-484/14, McFadden.

  58. 58.

    Put in the words of Savvola (2014), p. 118: “…All in all, the differences in the legal basis and the scope when comparing connectivity and hosting providers suggests (sic) that appropriateness of injunctions varies. Because for connectivity providers the conditions for liability exemption are broader, similar limitations could very well also apply to all types of injunctions…”.

  59. 59.

    AG Szpunar on C-484/14, McFadden, par. 134–150.

  60. 60.

    See C-484/14, McFadden, par. 90–98.

  61. 61.

    Stalla-Bourdillon (2016).

  62. 62.

    See Husovec & Peguera (2015), p. 16.

  63. 63.

    For a detailed account of the case law of the CJEU that established the procedural projections of the principles of supremacy and effet utile, see Storskrubb (2008), pp. 13–32; Galetta (2011), pp. 33–74.

  64. 64.

    Case C-324/09, L’Oreal v. eBay, par. 136.

  65. 65.

    First Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee of 21 November 2003 on the application of Directive 2000/31/EC on electronic commerce, COM (2003)702 final, p. 14.

  66. 66.

    First Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee of 21 November 2003 on the application of Directive 2000/31/EC on electronic commerce, COM (2003)702 final, p. 14.

  67. 67.

    Husovec & Peguera (2015), pp. 17–20, who put this test of the CJEU in closer scrutiny and explore its possible limits.

  68. 68.

    Case C-275/06.

  69. 69.

    Case C-557/07.

  70. 70.

    Promusicae, Case C-275/06, par. 63–65, Tele2, case C-557/07, par. 28.

  71. 71.

    The CJEU transferred that obligation to the national legislators, whom bestowed with the duty to transpose in their domestic legal orders the different EU Directives aiming to protect fundamental EU rights in a way that would satisfy the ends of all of them. See Promusicae, case C-275/06, par. 68 and Tele2, case C-557/07, par. 28. For an insightful analysis of the balancing tests applied by the CJEU and the ECtHR see Angelopoulos (2015), pp. 72–95. For a comparative analysis of the EU balancing system with the corresponding value system of the DMCA see Stalla-Bourdillon (2010).

  72. 72.

    See Angelopoulos (2009), pp. 1–11.

  73. 73.

    See Montero and Van Enis (2011), pp. 22–35.

  74. 74.

    Opinion of AG Cruz Villalón, case C-70/10, Scarlet Extended, par. 86. See also Smith (2010), pp. 88–95; Geiger and Izyumenko (2014), pp. 316–342.

  75. 75.

    Art 47 (2) of the Charter of Fundamental EU Rights.

  76. 76.

    For a penetrative analysis of the fundamental user rights affected by such general monitoring and blocking filters, see Neri (2011), pp. 1–13, esp. 9–13. For the problem of the procedural absence of users see also Husovec & Peguera (2015), pp. 28–30.

  77. 77.

    Case C-70/10.

  78. 78.

    Case C-360/10.

  79. 79.

    Scarlet, case C-70/10, par. 40, Sabam v. Netlog, case C-360/10, par. 38.

  80. 80.

    Scarlet, case C-70/10, par. 44–54, Sabam v. Netlog, case C-360/10, par. 44–51.

  81. 81.

    For the importance of the balancing test conducted in the examined cases, see Roth (2012), pp. 125–128.

  82. 82.

    For a detailed overview of the technical preconditions and the effectiveness and proportionality of the basic blocking methods. See Feiler (2012), pp. 6–11.

  83. 83.

    Opinion of AG Cruz Villalón, case C-314/12, UPC, par. 82.

  84. 84.

    For a complete analysis of the impact of blocking measures in terms of their effectiveness, proportionality and their interference with fundamental rights of the intermediaries and the users, see Husovec (2013), pp. 116–126.

  85. 85.

    Case C-314/12.

  86. 86.

    AG Cruz Villalón, case C-314/12, UPC, par. 85–90.

  87. 87.

    Case C-314/12, UPC, par. 50–52.

  88. 88.

    Case C-314/12, UPC, par. 56.

  89. 89.

    Case C-314/12, UPC, par. 62.

  90. 90.

    Angelopoulos (2014), p. 818 notes: “…According to the court, the right solution is the one that keeps everybody happy, while the hot potato of how this might be achieved is tossed to the intermediaries. Internet access providers must thus make sure that both right holders and users are served the whole of the same cake with no real guidance as to what measures might achieve that effect…”.

  91. 91.

    Most notably the compatibility of the German copyright law “Störerhaftung” doctrine with the intermediary regime of Articles 12–14 of the E-Commerce Directive, for which see Nordemann (2011), pp. 37–46; Frey et al. (2012), pp. 1–26.

  92. 92.

    Case C-484/14.

  93. 93.

    See the opinion of AG Szpunar, case C-484/14, McFadden, par. 131–132 and the ruling of the Court in the same case par. 87–88.

  94. 94.

    AG Szpunar, case C-484/14, McFadden, par. 134–150.

  95. 95.

    In that regard, it would not be unreasonable to suggest that forcing the Wi-Fi operators to register their users and retain their personal data would probably make them data controllers or processors, imposing on their shoulders the efforts and costs required in order to comply with the data protection law obligations and safeguards attached to such a role. For the circumstances and conditions that would bring Internet intermediaries to the realm of data protection compliance, see Van der Sloot (2015), pp. 216–219.

  96. 96.

    C-484/14, McFadden, par. 91–92.

  97. 97.

    Par. 96.

  98. 98.

    Par. 98.

  99. 99.

    For an overall assessment of the McFadden ruling, see Husovec (2016a).

  100. 100.

    Such a shift has been monitored globally already at the end of the previous decade. See Beer and Clemmer (2009), pp. 375–409.

  101. 101.

    See the interesting analysis of Ahlert et al. (2004), who display in a rather illustrative way that the legal uncertainty regarding intermediary liability and injunction schemes for violations of third parties within the EU provides an incentive to intermediaries to indiscriminately censor or remove material from the Internet, endangering the neutral character of the latter.

  102. 102.

    See, e.g., the meticulous analysis of Husovec (2016b).

  103. 103.

    Angelopoulos (2013); Leistner (2014), pp. 75–90.

  104. 104.

    See for that argumentation Edwards (2010), pp. 62–70.

  105. 105.

    See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, COM (2016) 288 final. In defense of the current intermediary liability and injunctions system against its modification towards a stricter copyright enforcement instrument. See Rosati (2016).

  106. 106.

    The Hague Program: Strengthening Freedom, Security and Justice in the European Union, EE C 53 from 03.03.2005, p. 2.

  107. 107.

    In that regard, see Hess (2014), pp. 227–228.

  108. 108.

    Case C-461/10, par. 59–60, where it was stated: “Thus, that legislation enables the national court seised of an application for an order for disclosure of personal data, made by a person who is entitled to act, to weigh the conflicting interests involved, on the basis of the facts of each case and taking due account of the requirements of the principle of proportionality… In those circumstances, such legislation must be regarded as likely, in principle, to ensure a fair balance between the protection of intellectual property rights enjoyed by copyright holders and the protection of personal data enjoyed by Internet subscribers or users.”

  109. 109.

    Case C-314/12, par. 57 in fine.

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Acknowledgements

The author would like to thank the Onassis Foundation for supporting his PhD research since 2014.

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  1. Institute for Legal Informatics, Leibniz Universität Hannover, Hannover, Germany

    Ioannis Revolidis

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  1. Institute for Legal Informatics, Leibniz Universität Hannover, Hannover, Japan

    Marcelo Corrales

  2. Faculty of Law, Kyushu University, Fukuoka, Japan

    Mark Fenwick

  3. Institute for Legal Informatics, Leibniz Universität Hannover, Hannover, Germany

    Nikolaus Forgó

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Revolidis, I. (2017). Internet Intermediaries and Copyright Enforcement in the EU: In Search of a Balanced Approach. In: Corrales, M., Fenwick, M., Forgó, N. (eds) New Technology, Big Data and the Law. Perspectives in Law, Business and Innovation. Springer, Singapore. https://doi.org/10.1007/978-981-10-5038-1_9

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