Intermediary liability in the E-commerce directive: So far so good, but it's not enough

Computer Law and Security Report

Volumn 16, Issue 4, 2000, Pages 231-239

  Julià Barceló, Rosa ^a   Koelman, Kamiel J ^b  

^a UNIVERSITY OF NAMUR   (Belgium)

^b NONE

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EID: 84979846399     PISSN: 02673649     EISSN: None     Source Type: Journal    
DOI: 10.1016/s0267-3649(00)89129-3     Document Type: Article

References (31)

1. The Directive has made its way through the legislative process, namely the co-decision procedure, which requires the approval of the Directive by both the European Parliament and the Council of Ministers.The European Parliament adopted its first reading opinion in February 1999, and the European Commission issued an Amended Proposal in August 1999. On 28 February 2000, the internal market Council reached a Common position of the Council with a view to the adoption of a Directive on electronic commerce. On May 4, 2000, the European Parliament approved of the text of the Common Position and a final version is expected to be published shortly.The Common Position, the text of which will not alter in the final version, is available at: .
2. In particular, under the caching function, the Directive refers to the so-called 'proxy caching technique'. This technique consists of storing in local servers copies of high demand material that originates on remote servers with the ultimate purpose of speeding the access time to Web sites. Indeed, by using this technique, when an end-user requires certain material from a particular Web site, the document is transmitted from the copy stored in the local server instead of from the source computer.As a result, the data has less distance and time to travel and therefore places less of a burden on the Internet infrastructure as a whole. Given currently available bandwidth, the Internet would cease to function properly without such caching.
3. For an analyses of upcoming and existing legislation on online intermediary liability in Europe and the United States, see: Koelman, K.J., Online Intermediary Liability, in: Hugenholtz, P.B. (ed.), Copyright and Electronic Commerce, The Hague/London/Boston: Kluwer 2000, p. 7-58; Köhler, C.; Burmeister, K., Copyright Liability on the Internet Today in Europe (Germany, France, Italy and the E.U.), European Intellectual Property Review, Vol. 20, Issue, 10, 1999, p. 485-499. For a comparison between the European Proposal and the United States Digital Millennium Copyright Act, see: Julia-Barcelo, R., Online Intermediary Liability Issues: Comparing EU And US Legal Frameworks, European Intellectual Property Review, Vol. 21, Issue 4, 2000, p. 106-119.
4. For an analyses of upcoming and existing legislation on online intermediary liability in Europe and the United States, see: Koelman, K.J., Online Intermediary Liability, in: Hugenholtz, P.B. (ed.), Copyright and Electronic Commerce, The Hague/London/Boston: Kluwer 2000, p. 7-58; Köhler, C.; Burmeister, K., Copyright Liability on the Internet Today in Europe (Germany, France, Italy and the E.U.), European Intellectual Property Review, Vol. 20, Issue, 10, 1999, p. 485-499. For a comparison between the European Proposal and the United States Digital Millennium Copyright Act, see: Julia-Barcelo, R., Online Intermediary Liability Issues: Comparing EU And US Legal Frameworks, European Intellectual Property Review, Vol. 21, Issue 4, 2000, p. 106-119.
5. For an analyses of upcoming and existing legislation on online intermediary liability in Europe and the United States, see: Koelman, K.J., Online Intermediary Liability, in: Hugenholtz, P.B. (ed.), Copyright and Electronic Commerce, The Hague/London/Boston: Kluwer 2000, p. 7-58; Köhler, C.; Burmeister, K., Copyright Liability on the Internet Today in Europe (Germany, France, Italy and the E.U.), European Intellectual Property Review, Vol. 20, Issue, 10, 1999, p. 485-499. For a comparison between the European Proposal and the United States Digital Millennium Copyright Act, see: Julia-Barcelo, R., Online Intermediary Liability Issues: Comparing EU And US Legal Frameworks, European Intellectual Property Review, Vol. 21, Issue 4, 2000, p. 106-119.
6. The Common Position has also added a recital that makes clear the ability of Member States to impose injunctions. In particular, the recital says as follows: "Whereas the limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; whereas such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it."
7. Recital 47.
8. The Court of First Instance De Hague, for example, found that fault on the part of the provider may be found if he is notified of unlawful third part content residing on his servers. Court of First Instance De Hague 9 June 1999 (Scientology v XS4all), Informatierecht/ AMI 1999, p. 112.
9. Recital 46.
10. See, e.g., the account of the 'Copyright Control Services', which issued over 3400 take-down notices in one year on behalf of the joint pro-audio software producers. The account is available as an Annex with Bortloff, N. & Henderson, J., Notice and Take-Down Agreements in Europe (1999), WIPO Document OSP/LIA/3, available at: .
11. For example, it would seem appropriate for owners of the copyright in computer programs to obtain quick removal by a host service provider of infringing programs available on 'Warez' sites residing on one of its servers.
12. See on these cases Hayes, D.L., Apple v. Microsoft Under a Microscope (1992), available at: .
13. Skelton, T., Internet Copyright Infringement and Service Providers: The Case for a Negotiated Rulemaking Alternative, San Diego Law Review, Vol. 35, 1998, p. 219-340.
14. The Court held: "Where a BBS operator cannot reasonably verify a claim of infringement, either because of a possible fair use defence, the lack of copyright notices on the copies, or the copyright holder's failure to provide the necessary documentation to show that there is a likely infringement, the operator's lack of knowledge will be found reasonable and there will be no liability for contributory infringement for allowing continued distribution of the works on its systems. [...] [T]he First amendment argument is merely a consideration in the fair use argument." Religious Technology Center v Netcom Online Communication Services, 907 F. Supp. 1361 (N.D. Cal. 1995).
15. President of the Court The Hague, 12 March 1996, Informatierecht/AMI 1996-5, p. 96 and Court of First Instance The Hague, 9 June 1999 (Scientology v XS4all), Informatierecht/AMI 1999, p. 112.
16. See: Global Internet Liberty Campaign Principles, Regardless of Frontiers at: .
17. Article 512 ( c)1) of the US Copyright Act provides that a hosting service provider who expeditiously blocks access to material if he receives a notification of a rights holder claiming that the content concerned infringes his copyrights, he will avoid liability.
18. This procedure is included in Section 512 (c) (2) and (3).
19. The procedure is described in Section 512 (g) (2) and (3).
20. Section 512 (g) (2) (c) of the US Copyright Act.
21. Section 512(f) of the US Copyright Act.
22. Band, J., The Superhighway to Jericho: Good Samaritan Laws, Journal of Internet Law, August 1999, p. 6-12; Sieber, U., Responsibility of Internet Providers - A Comparative Legal Study With Recommendations for Future Legal Policy, Computer Law & Security Report, Vol. 15, n 5, 1999, p. 291-310.
23. Band, J., The Superhighway to Jericho: Good Samaritan Laws, Journal of Internet Law, August 1999, p. 6-12; Sieber, U., Responsibility of Internet Providers - A Comparative Legal Study With Recommendations for Future Legal Policy, Computer Law & Security Report, Vol. 15, n 5, 1999, p. 291-310.
24. A paper presented by Wrenn at the meeting in Geneva is available at: . Oktay, B. & Wrenn, G., A Look Back at the Notice and Take-Down Provisions of the US Digital Millennium Copyright Act One Year After Enactment (1999), WIPO Document OSP/LIA/2.
25. See extensively on the prior restraint doctrine: Lemley M. & Volokh, E.,Freedom of Speech and Injunctions in Intellectual Property Cases (1998), (arguing that the prior restraint doctrine should be of equal importance in cases of alleged copyright infringement).
26. See Articles 133 till 138 of the SpanishAct on Intellectual Property.
27. Article 1428 of the Spanish Procedural Code contains the general rules regarding interlocutory injunctions.
28. Julia-Barcelo, R., Online Intermediary Liability Issues: Comparing EU And US Legal Frameworks, European Intellectual Property Review, Vol. 21, Issue 4, p. 1-18.
29. Article 16 reads as follows: "Member States and the Commission shall encourage: (a) the drawing-up of codes of conduct at Community level, by trade, professional and consumer associations or organizations, designed to contribute to the proper implementation of Articles 5 to 15."
30. Bortloff, B. & Henderson, J., supra note 8, p. 19-24.
31. Hugenholtz, for example, feels content should only be taken down after a judicial decision, not pending one. See Hugenholtz, P.B., "Het Internet:het auteursrecht voorbij?', (1998) 128 Handelingen NVJ, p. 230-231. Indeed, it would appear that in some cases experience of similar special bodies is not satisfactory. For example, in Australia a Broadcasting ServicesAmendment Act was passed which empowers the Australian Broadcasting Authority (ABA) to monitor for offensive material on the Internet, and upon detection of unlawful material, to issue notices to online intermediaries who are then obliged to remove the material. In this case, according to free speech groups, the law lacks objective evaluation criteria leaving to the ABA with too wide discretionary powers on content rating.