Responsibilities of intermediary service providers for copyright infringements by users of their service

Abstract

The subject matter of this research paper is concerned with the responsibilities of intermediary service providers for copyright infringement by users of their service, an issue which has become one of the most critical issues pertaining Internet governance. This paper identifies when injunctions are imposed upon such intermediary service providers, and to what extent this can be done with regard to preventing the exploitation of copyrighted material. It exhibits the way intermediary responsibility is viewed by the CJEU and by the national courts of the Member States. It also explores any extrajudicial measures which Member States have implemented in order to combat copyright infringement and make use of the intermediary’s position as the best placed to tackle it. It addresses the current movement towards imposing more onerous obligations on ISPs, in comparison to trying to achieve a balance between intellectual property rights, the freedom to conduct business, the freedom of expression and the right of privacy. This leads to a discussion on the proposed Directive on Copyright in the Digital Single Market and the emergence of proactive monitoring obligations on both a mandatory and voluntary basis. The proposed directive presents a substantial shift in intermediary policy, moving away from established principles found in the Charter and the Electronic Commerce Directive. Consequently, it introduces stricter and more onerous obligations on online intermediaries that would upset the balance between copyright protection and other fundamental rights. The conclusion is that the current regime is appropriate and any legislative additions should promote intermediary service provider responsibility through encouraging agreements between the stakeholders and self-regulation.