Beyond the Safe Harbours: Harmonising Substantive Intermediary Liability for Copyright Infringement in Europe
Intellectual Property Quarterly, 2013-3, p. 253-274.
Institute for Information Law Research Paper No. 2013-11
24 Pages Posted: 29 Nov 2013 Last revised: 7 Jan 2014
Date Written: November 28, 2013
The E-Commerce Directive’s safe harbour regime provides a veneer of approximation between the divergent laws of the Member States on the question of intermediary liability for online copyright infringement. The Directive however does not harmonise the underlying substantive liability norms which determine whether the immunities will be necessary or redundant, leaving ample room for national divergences between the laws of the various Member States. This article examines the applicable regimes currently in place in the three selected jurisdictions of the UK, France and Germany, picking out their commonalities and divergences and revealing the confusion that governs the topic across European borders. The intention is to examine the structures in place that could allow for the eventual European harmonisation of the substantive issues.
Keywords: internet, intermediary, ISP, online infringement, electronic commerce, EU, England, France, Germany, secondary liability, intermediary liability, third party liability, immunity, safe harbors, hosting, mere conduit, caching
JEL Classification: O34, K13, O52
Suggested Citation: Suggested Citation