Human Rights and the European Harmonisation of Intermediary Liability in Copyright Christina Angelopoulos, Centre for Intellectual Property and Information Law (CIPIL), University of Cambridge (cja58@cam.ac.uk)

Current EU Legal Framework = Fragmented Safe Harbours (E-Commerce Directive (Directive 2000/31/EC)): Article 12: “Mere Conduit” Article 13: “Caching” Article 14: “Hosting”

Article 8(3) InfoSoc Directive (Directive 2001/29/EC): Copyright Article 8(3) InfoSoc Directive (Directive 2001/29/EC): “Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.” Recital 59: The conditions and modalities relating to such injunctions should be left to the national law of the Member States.

Article 15(1) ECD “Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.”

Intermediary Liability = Conflict between Fundamental Rights “The protection of the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected.” - Case C-70/10, Scarlet Extended (24 November 2011)

Fair Balance Case C-275/06, Promusicae (29 January 2008): “the Member States must, when transposing [directives], take care to rely on an interpretation of the directives which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order.”

COPYRIGHT (Article 17(2) of the Charter) Freedom to CONDUCT A BUSINESS (Article 16) + Right to PRIVACY (Article 7) Protection of PERSONAL DATA (Article 8) FREEDOM OF EXPRESSION (Article 11) COPYRIGHT (Article 17(2) of the Charter) v.

CJEU Balancing Case Law

CJEU Balancing Case Law Balance Promusicae  (C-275/06)

CJEU Balancing Case Law Balance Promusicae  (C-275/06) Balancing Examples (user suspension/ identification) L’Oréal v eBay  (C-324/09)

CJEU Balancing Case Law Balance Promusicae  (C-275/06) Balancing Examples (user suspension/ identification) L’Oréal v eBay  (C-324/09) Scarlet (C-70/10) +  Netlog (C-360/10) Balancing Results (no filtering)

Telekabel Wien (C-314/12) Blocking by IAP Freedom to conduct a business (Art. 16 Charter) Freedom of information (Art. 11 Charter) Copyright (Art. 17(2) Charter) v.

Freedom to conduct a business A blocking order would interfere with the intermediary’s freedom to conduct a business [50] But a fair balance is possible if the intermediary can choose the specific measures to be taken in order to achieve the result sought [52] it can then choose to put in place measures which are best adapted to the resources and abilities available to him and which are compatible with the other obligations and challenges which he will encounter in the exercise of his activity. The intermediary must also be able to avoid liability by proving that it has taken all reasonable measures  no ‘unbearable sacrifices’ [53]-[54]

(b) Freedom of information Intermediary must “ensure compliance with the fundamental right of internet users to freedom of information.” [55] Measures “must be strictly targeted, in the sense that they must serve to bring an end to a third party’s infringement of copyright or of a related right but without thereby affecting internet users who are using the provider’s services in order to lawfully access information.”  otherwise, “unjustified in the light of the objective pursued” [56]

(c) Copyright “it is possible that a means of putting a complete end to the infringements of the intellectual property right does not exist or is not in practice achievable, as a result of which some measures taken might be capable of being circumvented in one way or another” [60] But the measures which taken must be “sufficiently effective to ensure genuine protection of the fundamental right at issue” [62]

How to Balance? “they cannot however be considered to be incompatible with the requirement that a fair balance be found […] provided that (i) they do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) that they have the effect of preventing unauthorised access to protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter that has been made available to them in breach of the intellectual property right.” [63]

Case C-484/14, McFadden (15 September 2016): A court order to terminate a wi-fi network that can be accessed free-of-charge by anonymous end-users = no ‘fair balance’ A court order to monitor all the information transmitted through that network = no ‘fair balance’ By contrast, an order to password-protect the network = ‘fair balance’ Opinion of AG Szpunar in Case C-610/15, Stichting Brein v Ziggo (8 February 2017): A injunctions ordering an IAP to block access to a peer-to-peer network = ‘fair balance’

Case C-484/14, McFadden (15 September 2016): ‘Since the two other measures have been rejected by the Court, to consider that a communication network access provider need not secure its internet connection would thus be to deprive the fundamental right to intellectual property of any protection, which would be contrary to the idea of a fair balance’  ‘necessary in order to ensure the effective protection of’ copyright Opinion of AG Szpunar in Case C-610/15, Stichting Brein v Ziggo (8 February 2017): ‘The counterpart of [the safe harbours], in the context of that balance, is [the intermediaries’] cooperation in order to avoid or prevent such infringements.’

A Substantive Harmonisation of Intermediary Liability in Copyright?

Organised list of relevant factors BUT: not as general and flexibly-formulated Only relevant to internet access providers (ISPs and Wi-Fi providers) Only relevant to injunctions (Art. 8(3) InfoSoc Directive) No basis in EU secondary law that makes fundamental rights relevant to the rules on liability for damages Art. 51 Charter: the Charter is addressed to the EU and to the Member States only when implementing EU law SO: only an incomplete, lateral solution Still no positively-stated harmonised law governing intermediary liability in copyright

GS Media, Case C-160/15 (8 September 2016) Is the provision of hyperlinks to infringing content a copyright infringement?

GS Media, Case C-160/15 (8 September 2016) “[W]here it is established that [the linker] knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet” = ‘communicating works to the public’ ‘primary’ copyright infringement

Opinion of AG Szpunar in Stichting Brein v Ziggo: Where websites such as The Pirate Bay (which index files and providing a search engine that make finding infringing works on a peer-to-peer networks possible) has actual knowledge that it is facilitating copyright infringement = ‘communicating works to the public’ ‘primary’ copyright infringement

Proposal for a Directive on Copyright in the Digital Single Market Article 13(1) “Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate.”

Proposal for a Directive on Copyright in the Digital Single Market Article 13(1) “Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate.”

Proposal for a Directive on Copyright in the Digital Single Market Article 13(1) “Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate.”

A Substantive Harmonisation of Intermediary Liability in Copyright!

A Substantive Harmonisation of Intermediary Liability in Copyright! = More ‘fair balance’

Thank you for your attention! 