Intermediary Liability in a Global World
in: Tatiana Eleni Synodinou (ed.), Pluralism or Universalism in International Copyright Law (Kluwer law, Forthcoming)
40 Pages Posted: 26 Mar 2019 Last revised: 12 Apr 2019
Date Written: March 2, 2019
This article attempts to propose certain principles and standards as building blocks for a future international law approach to intermediary liability in a global world. This raises a number of questions. Is a copyright targeted, area specific approach to intermediary liability warranted? Should there be a principled distinction between (primary) infringement and (secondary) indirect liability? And if so, which are the central elements of indirect intermediary liability? To which extent do the existing safe harbour provisions converge on a global scale? And how could they be improved? Should there be a third level of accountable, but not liable intermediaries, against whom orders to co-operate in the enforcement of copyrights could be directed?
Apart from these comparatively specific, substantive law questions, another more general, methodological question comes to mind. Which degree of uniform international regulation or acquis does exist in regard to the above mentioned issues and which degree of harmonisation seems reasonable and realistic as a goal for the future? No straightforward, general answer to this question seems possible. Instead, each of the substantive law questions above has to be assessed differently in this respect. However, in regard to the specific field of intermediary indirect liability, which is not yet harmonised on the international level, this article will show that only a very light touch, pluralist approach seems possible and reasonable at the moment. Therefore, this article identifies certain general principles and standards, which should form building blocks for a future approach to intermediary liability in international law.
Keywords: liability, intermediary liability, indirect intermediary liability, primary infringement, copyright, harmonisation, Intellectual Property Rights
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