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| Author | : Martin Husovec |
| Publisher | : Cambridge University Press |
| Total Pages | : 296 |
| Release | : 2017-11-30 |
| Genre | : Law |
| ISBN | : 1108415067 |
This book explores an emerging type of intellectual property remedy - an injunction that can compel innocent third parties to provide enforcement assistance.
| Author | : Husovec, Martin |
| Publisher | : Cambridge University Press |
| Total Pages | : 297 |
| Release | : |
| Genre | : |
| ISBN | : 1108247881 |
| Author | : |
| Publisher | : |
| Total Pages | : |
| Release | : 2019 |
| Genre | : |
| ISBN | : 9789291562664 |
Online intermediaries bring together or facilitate transactions between third parties on the internet, and can bring great benefits for European businesses. However, intellectual property rights (IPR) infringement may also be facilitated by the use of services from intermediary service providers. European Union lawmakers have prepared a framework for the obligations and liability of intermediaries. Notably, EU law provides that rights holders should have the possibility of applying for an injunction against an intermediary whose services are being used by a third party to infringe IPR. The conditions and procedures relating to these injunctions, however, should be left to the national law of the Member States. In addition, according to the most recent Copyright in the Digital Single Market Directive, certain platforms can perform a communication to the public. Courts have referred to the provisions of different EU instruments and to national law to determine the scope of the obligations and liability of intermediaries. This EUIPO case-law collection presents some of the latest jurisprudential developments in this fast-evolving area. It also gives an overview of the different criteria and the legal reasoning applied by courts in the European Union, and of the main conclusions or outcomes of selected cases. Relevant and important decisions of the Court of Justice of the European Union (CJEU) and national courts, issued between 2016 and the beginning of 2019, have been included. A total of nine preliminary rulings were taken into account, as well as 34 judgments from courts in 14 Member States, namely the Czech Republic, Denmark, Germany, Ireland, Greece, Spain, France, Italy, Lithuania, the Netherlands, Austria, Poland, Sweden and the United Kingdom. The CJEU has given guidance on the criteria for liability in cases of alleged online IPR infringements, notably of copyright and related rights, as well as trade mark rights. In a number of preliminary rulings, the CJEU shed light on the notion of 'an intermediary'. It clarified the conditions for exemptions from liability and the scope of the obligations of different types of intermediaries for third-party infringements under the Electronic Commerce Directive, the Enforcement Directive and the Information Society Directive. In addition, the CJEU has clarified, to a certain extent, if and under what circumstances different types of intermediaries, and other parties, can be considered to have made a communication to the public in the sense of Article 3 of the Information Society Directive. Around half of the national court decisions relate to injunctions granted against internet access providers to stop and/or prevent infringements by third parties. Some of these decisions also imposed injunctions on search engines. In cases collected from nine Member States, judges have elaborated.
| Author | : Martin Husovec |
| Publisher | : Cambridge University Press |
| Total Pages | : 296 |
| Release | : 2017-11-30 |
| Genre | : Law |
| ISBN | : 1108244467 |
In the European Union, courts have been expanding the enforcement of intellectual property rights by employing injunctions to compel intermediaries to provide assistance, despite no allegation of wrongdoing against these parties. These prospective injunctions, designed to prevent future harm, thus hold parties accountable where no liability exists. Effectively a new type of regulatory tool, these injunctions are distinct from the conventional secondary liability in tort. At present, they can be observed in orders to compel website blocking, content filtering, or disconnection, but going forward, their use is potentially unlimited. This book outlines the paradigmatic shift this entails for the future of the Internet and analyzes the associated legal and economic opportunities and problems.
| Author | : Folkert Wilman |
| Publisher | : Edward Elgar Publishing |
| Total Pages | : 409 |
| Release | : 2020-11-27 |
| Genre | : Law |
| ISBN | : 183910483X |
Featuring foreword from Maciej Szpunar, First Advocate General at the Court of Justice of the European Union and Professor at the University of Silesia in Katowice This book delivers a comprehensive examination of the legal systems that regulate the responsibilities of intermediaries for illegal online content in both the EU and the US. It assesses whether existing systems are capable of tackling modern challenges, ultimately advocating for the introduction of a double-sided duty of care, requiring online intermediaries to do more to tackle illegal content whilst also better protecting their users’ rights.
| Author | : Stefan Kulk |
| Publisher | : Kluwer Law International B.V. |
| Total Pages | : 526 |
| Release | : 2019-10-02 |
| Genre | : Law |
| ISBN | : 9403514906 |
All forms of online communications and interactions between people and companies on the Internet are facilitated by intermediaries – service providers whose decisions and policies have a shaping effect on the Internet, its users and the information shared on it. Today, because such intermediaries employ technologies that go well beyond the mere transmission and storage of information into new realms potentially disrupting existing business models, a rethinking of existing relevant law is called for. The legal analysis and recommendations in this book put the topic of intermediary liability in the perspective of copyright law and offer a vision on how to regulate that liability. In the context of in-depth and up-to-date analyses on EU, US, German and Dutch law, the author discusses such issues and topics as the following: the liability rules in the new Directive on Copyright in the Digital Single Market; liability for the intermediary’s own copyright infringements (primary liability); the intermediary’s responsibility to stop or prevent the infringements of others (secondary liability); the role that fundamental rights play in copyright law and intermediary liability; the rights and interests of copyright owners, intermediaries and users, and how they are protected; notice-and-takedown by service providers; website blocking by Internet access providers; the publisher’s rights and the use of online articles by platforms; legal status of hyperlinks under copyright law; and search engine use of copyrighted materials. A focus on the strengths and weaknesses of existing EU copyright law concerning Internet intermediaries in terms of how future-proof that law is, includes detailed attention to legislation, regulation and case law. With its deeply informed guidance with respect to the methods of regulation in a domain that is heavily influenced by technological developments, this book will be welcomed by policymakers, legislators, academics, judges and practitioners working in the area of copyright law as applied to the Internet. The detailed attention to the extent to which an intermediary can be held liable for copyright infringements in both the EU and the US will prove highly beneficial for in-house counsellors and advisors working for rights holder organizations and intermediary service providers.
| Author | : Martin Husovec |
| Publisher | : |
| Total Pages | : 22 |
| Release | : 2017 |
| Genre | : |
| ISBN | : |
In this article we examine the legal framework of the European Union for injunctions against intermediaries whose services are used by a third party to infringe an intellectual property right, as set forth in the InfoSoc Directive and the Enforcement Directive. In particular, we consider the conditions to apply for the injunctions, taking into account how those conditions have been construed by the CJEU. We explore which is the minimum floor of injunctive relief Member States are obliged to provide under the Directives, as well as the maximum ceiling allowed, beyond which the protection granted would infringe upon the limits imposed by the EU Law. Next, we move to consider a particular type of injunctions that rights holders may apply for against intermediaries on the basis of Art. 8(3) of the InfoSoc Directive, namely those that would consist of enjoining an ISP from providing internet access to one of its users allegedly engaging in copyright infringement. A case already decided in Spain, Promusicae et al v. R Cable y Telecomunicaciones Galicia, granting such an injunction serves us as a study case to assess the problems these remedies face. On the one hand, these privately litigated internet disconnection injunctions may be seen by rights holders as a promising tool to fight online copyright infringement - maybe an alternative to unsuccesful graduate response schemes. However, as we show in the article, these injunctions raise serious issues regarding their compatibility with the EU Charter of Fundamental Rights. Indeed, the possibility of effective and human-right-conform injunctions of this kind turns up to be very narrow. In other words, the Directive's provisions promise much, but if applied correctly, they deliver little.
| Author | : Christina Angelopoulos |
| Publisher | : Kluwer Law International B.V. |
| Total Pages | : 594 |
| Release | : 2016-09-15 |
| Genre | : Law |
| ISBN | : 9041168419 |
In step with its rapid progress to the centre of modern social, political, and economic life, the internet has proven a convenient vehicle for the commission of unprecedented levels of copyright infringement. Given the virtually insurmountable obstacles to successful pursuit of actual perpetrators, it has become common for intermediaries –providers of internet-related infrastructure and services – to face liability as accessories. Despite advances in policy at the European level, the law in this area remains far from consistently applicable. This is the first book to locate and clarify the substantive rules of European intermediary accessory liability in copyright and to formulate harmonised European norms to govern this complicated topic. With a detailed comparative analysis of relevant regimes in three major Member State jurisdictions – England, France, and Germany – the author elucidates the relationship between these rules and the demands of EU law on fundamental rights and the principles of European tort law. She clearly presents the interrelations between such areas as the following: - accessory liability in tort; - joint tortfeasance; - European fault-based liability: fault, causation, defences; - negligence; - negligence balancing: rights-based or utility-based?; - Germany’s “disturbance liability” (Störerhaftung); - fair balance in human rights; - end-users’ fundamental rights; - The European Commission’s 2015 Communication on a Digital Single Market Strategy for Europe; - The E-Commerce Directive and other relevant provisions; - Safe harbours: mere conduit, caching, hosting; - Intermediary actions: monitoring, filtering, blocking, removal of infringing content; and - application of remedies: damages and injunctions. The strong points of each national system are highlighted, as are the commonalities between them, and the author uses these to build a proposed harmonised European framework for intermediary liability for copyright infringement. She concludes with suggestions for the future possible integration of the proposed framework into EU law. The issue of the liability of internet intermediaries for third party copyright infringement has entered into the political agenda across the globe, giving rise to one of the most complex, contentious, and fascinating debates in modern copyright law. This book offers an opportunity for a re-conceptualisation and rationalisation of the applicable law, in a way which additionally better accounts for the cross-border nature of the internet. It will be of inestimable value to many interested parties – lawyers, internet intermediaries, NGOs, policymakers, universities, libraries, researchers, lobbyists – in matters regarding the information society.
| Author | : Martin Husovec |
| Publisher | : |
| Total Pages | : 24 |
| Release | : 2017 |
| Genre | : |
| ISBN | : |
Very few provisions of the European Union intellectual property enforcement framework are subject to so many preliminary references as orders against intermediaries. The website blocking case law is also an interesting case study from the perspective of the European harmonization. It shows how harmonisation by a halo effect can work. The widely-publicized use of a particular enforcement measure is replicated country-by-country, by a homogeneous group of stakeholders, thereby testing the local implementations and bringing its elements to the public scrutiny. The resulting picture painted by the domestic website blocking cases then reflects the state of Union harmonization. This piece contributes to the growing scholarship mapping the national post-implementation phase. It proceeds as follows. Part 1 gives a primer on Union law regarding injunctions against intermediaries. Part 2 explores the situation under the Dutch 'localization' of Union law, focusing particularly on injunctions, including against intermediaries, right to information and reimbursement of the costs. Part 3 explains the recent Dutch litigation chain concerning the website blocking and puts it in the broader context of discussions. Part 4 contrasts these findings with the situation under European Union law and practice in the other Member States. Part 5 concludes by evaluating the existing state of the harmonization in the area.
| Author | : David F. Lindsay |
| Publisher | : |
| Total Pages | : |
| Release | : 2018 |
| Genre | : |
| ISBN | : |
The most recent addition to intermediary liability law is the jurisdiction to award injunctions against intermediaries to block internet access in order to prevent online copyright infringements. This article identifies and analyses the limits on the new statutory jurisdiction to grant no-fault injunctions. In particular, it examines the potential role of the proportionality principle, as applied under European Union ('EU') law, to set appropriate limits on the award of blocking orders.
