Maja Lubarda, LL.M.: ISP liability for online copyright infringement

Almost ten years have passed since the USA adopted legislation to limit liabilities of intermediaries for end users' copyright infringement. The EU followed just a few years later. The legislation was passed as a result of lobbying actions of powerful rightholders groups that wanted to impose the liability for infringing acts of users to their intermediaries, since they are easier to identify and prosecute, and have more financial resources than their users. After almost a decade the effects of the legislation are already seen in practice. The thesis tested in this paper is that due to lack of clarity of the relevant provisions and lack of proper regulation of certain procedures (especially in the EU), the intermediaries are being misused as the rightholders’ means to control the internet even in cases where their rights have not been infringed. Consequently, intermediaries are forced to remove the disputed content from the internet without proper consideration of its unlawfulness, which endangers freedom of expression.  

The paper is divided into three parts. The first part is a short analysis of the EU legislation dealing with intermediaries' liability for online copyright infringement, the E-Commerce Directive1 and the EU Copyright Directive (EUCD).2 The second part presents a comparison of specific provisions (or lack thereof) of the E-Commerce Directive with the American DMCA,3 and offers suggestions of possible improvements. The third part evaluates the existing EU (and US) legislation in light of new technologies that have developed in the past few years and suggests certain adjustments and changes that need to be made.