Beyond the Safe Harbours. Harmonising substantive intermediary liability for copyright infringement in Europe

C.J. Angelopoulos, Beyond the Safe Harbours: Harmonising Substantive Intermediary Liability for Copyright Infringement in Europe, Intellectual Property Quarterly, 2013-3, p. 253-274.
Via IViR.nl:The internet has proven a convenient vehicle for the commission of unprecedented levels of copyright infringement by leagues of anonymous – and impecunious – infringers. In their quest for deep pockets and easy targets, right-holders have, in reaction, turned against the internet middlemen, attempting to hold them accountable for the wrong-doings of the small-scale offenders using their networks. As a result, the tricky issue of indirect liability has been given new urgency. With perplexed domestic courts turning to the general rules on extra-contractual liability to parse the issue, during the 90s a number of EU Member States started introducing special liability laws in order to shield the budding internet industry from legal uncertainty. (...)

It is therefore apparent that a cogent solution to the problem of intermediary liability will require significant doctrinal reform across the board of EU Member States. As a result, a gap has emerged that would be most efficiently covered with one single harmonised European solution for substantial intermediary copyright infringement than multiple national ones. Happily, such harmonisation is far from as hopeless as it is usually presented: indeed, as this article will show, although the underlying national traditions and bodies of law in tort are doubtlessly dissimilar, specifically in the area of intermediary copyright liability the rules are moving closer together and common principles are beginning to take shape beneath the national divergences.

(...) The article shall focus on the liability of internet service providers acting in their intermediary capacity for copyright infringement committed on their networks and web pages by their users. Direct liability incurred by a platform for its own harmful behaviour without third party involvement shall not be discussed, nor will the liability of users themselves for content they upload. It should be noted that, although this analysis is concerned exclusively with intermediary liability for copyright infringement, cases involving other forms of illegality will be discussed where they allow for conclusions to be drawn that can be equally applied to copyright.

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