The Comparative Analysis of ISP's Limitation of Liability Regimes in the EU and China

Abstract

In recent years, there has been a proliferation of online platforms providing access to large amounts of copyrighted works. These platforms have become a main source of access to content online. On the one hand, rights holders claim that the revenues generated from the online use of their protected works are distributed unfairly (value gap). On the other hand, strict regulations on ISPs will stifle competition amongst online platform providers. Therefore, it is important to strike a balance between the interests of online platforms and rights holders. One approach is to grant the online platforms exemption from liability under certain circumstances. In the EU, the enforcement of European Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market introduces significant changes to copyright infringement liability for ISPs. Although many countries conditionally provide safe harbours for online platforms, the feasibility and eligibility of safe habours vary from one to another. This essay does not address questions in which scenarios ISPs directly constitute infringement of copyright law. Instead, this essay will primarily compare 1) ISP liability exemptions under the copyright law regime between China and the EU, namely under what circumstances can ISPs be granted immunity from liability;2) analyse the differences between liability limitations for ISPs in China and the EU; and 3) finally, propose improvements of the certainty and feasibility of the system of ISP’s liability limitation.

Keywords: Article 17 DSM Directive, ISP liability exemptions, Comparison of ISP’s liability limitation between China and the EU, OCSSPs, Upload filtering