Is hosting providers' safe harbour the real problem of copyright owners? A new article

Finding a safe harbour?
A mission that can wait

The Ecommerce Directive envisages a number of immunities (known as safe harbours) that shield internet service providers (ISPs) from liability for third-party content that they transmit, cache or host.

In the context of its Digital Single Market Strategy [Katposts here] the EU Commission is currently engaged in a discussion of whether the liability principles and rules contained in that EU directive for the benefit of ISPs should be amended [the next EU copyright package is awaited for release in the second half of September - see here for a leaked version].

With specific regard to copyright, one of the principal concerns relates to a particular type of ISP, ie hosting providers. 

Unlicensed hosting providers have been increasingly said to invoke the relevant safe harbour immunity in the EU Ecommerce Directive [Article 14] lacking the conditions for its application. This alleged abuse has led to a distortion of the online marketplace and the resulting 'value gap' indicated by some rightholders.

A proposal has been recently advanced in France advocating the removal – at the EU level – of the safe harbour protection for hosting providers that give access to copyright works. This would be necessary to enable the effective enforcement of copyright and related rights in the digital environment, particularly on platforms that disseminate protected content. In particular, the French document considers that the Court of Justice of the European Union (CJEU) has erred in its interpretation and application of relevant principles of online intermediary liability.

I have recently completed a new article [just released as a CREATe Working Paper and due for publication in the European Intellectual Property Review], in which I address some of the points raised by the French proposal. 

My main conclusions are that:

• Contrary to the view of the French document, the CJEU has correctly applied relevant provisions in the Ecommerce Directive;
• The removal of the immunity in Article 14 of the Ecommerce Directive for hosting providers that give access to copyright works would not provide rightholders with significantly greater protection than the one already enjoyed under the existing legislative framework, at least as far as their primarily liability is concerned. This is also because the current understanding of the right of communication to the public within Article 3 of the InfoSoc Directive does not seem to suggest that intermediaries otherwise protected by the Article 14 safe harbour could be held primarily liable for the doing of unauthorised acts of communication to the public.

Overall, the current framework already sets an adequate degree of protection: what is required is a rigorous application by national courts of the principles enshrined in the Ecommerce Directive, as interpreted by the CJEU.

Readers' feedback and views are very welcome! My piece is available here.