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Out-Law Analysis 3 min. read

Copyright 'safe harbours' for service providers need to be consistent

ANALYSIS: EU copyright law needs to be updated to address a peculiarity that restricts the options rights holders have to tackle infringement, and to provide greater certainty to internet service providers (ISPs) over the actions they need to take to help.

Copyright holders often go to court to get internet intermediaries, such as ISPs, to take action to stop the dissemination of content that infringes their rights.

However, a ruling last year by a German court has highlighted an anomaly in the way 'safe harbour' protections ISPs enjoy under EU law apply in the case of copyright enforcement. It has confirmed that applications for blocking orders and injunctive relief are treated differently, despite the economic effect of those measures being the same.

The safe harbour protections stem from the EU's E-Commerce Directive. That legislation prohibits service providers from being put under any general obligation to monitor for illegal activity by users of their service.

In addition, where the service providers are mere conduits to infringing activity by others, they cannot be held liable for that activity unless and until they obtain 'actual knowledge' of the activity. At that stage, a service provider must act expeditiously to remove or to disable access to the information if they are not to be held liable themselves for infringement.

However, EU copyright law cuts into these 'safe harbour' protections. It makes clear that rights holders can apply for an injunction against intermediaries whose services are used by a third party to infringe copyright.

In Germany, however, changes made to the Telemedia Act in October 2017 have spurred debate over the admissibility and the requirements of blocking injunctions.

The issue came to a head in July last year when the German Federal Court of Justice confirmed that the new provisions have their peculiarities in practice.

In its ruling in the 'Dead Island' case, the German court confirmed that while rights holders can ask the courts to serve ISPs with an order to block their customers' access to copyright-infringing websites, they are not entitled to pursue injunctive relief against ISPs, which would serve to stop particular copyright infringing content on those websites from being communicated over the service providers' networks, because of the mere conduit safe harbour protections that apply under the E-Commerce Directive.

While both remedies would have the same effect – restricting internet users' access to infringing material – the law as interpreted by the Federal Court of Justice provides ISPs with a 'safe harbour' against content-targeted injunctive relief but not medium-targeted blocking orders.

The judgment raises doubt over the intention of legislators.

There is a need for consistency in the application of safe harbours in relation to relief claimed under copyright law. Yet it appears that further inconsistency to safe harbours will derive from the controversial EU copyright reforms that are proposed.

The 'Article 13' reforms would require online platforms to gain content creators' permission to host their copyrighted content and would be forced to intervene to tackle unauthorised use of the material by users in certain circumstances. A two-tier system is envisaged whereby the burdens on small platforms to act would be more limited than those that would apply to the larger tech companies.

The measures proposed would serve to restrict further the safe harbours that internet intermediaries currently benefit from, but without those restrictions being applied holistically there is a risk of inconsistencies arising when copyright holders explore options for relief.

Setting copyright laws for the internet age is not an easy task. There are competing interests that need balanced. Widening access to online content is in the interests of consumers, and safeguards are needed to ensure internet intermediaries can continue to not just operate effectively but innovate too. Without ensuring that right holders can effectively enforce their rights, however, investment in creating new content is put at risk.

A first step towards providing a clearer and more certain copyright framework for both rights holders and ISPs would for EU law to be updated to make safe harbour protections for claims for relief that have the same effect are consistent. In this respect, the right balance might be to confirm that blocking orders and injunctive relief are available to rights holders when seeking action by ISPs whilst tightening the circumstances in which those measures should be granted by the courts.

Nils Rauer is a Frankfurt-based copyright and technology law expert at Pinsent Masons, the law firm behind Out-Law.com.

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