Intermediary Liability in the EU [발제자: Frank Gotzen (ALAI 회장)]
제3회ALAI 월례연구회 / COA국제저작권법학회[2019.12.12]
The E-commerce directive of 2000 organised a safe harbour, exempting intermediaries from secondary liability for hosting illegal material of all sorts, including copyright infringing content.
However, under art. 3 of the Infosoc Directive of 2001 internet service providers were sometimes held directly liable by the EU Court of Justice.
Article 17 of the DSM directive of 2019 is applicable to a special type of ISP: the online content-sharing service provider. This is an ISP of which the main purpose is to store and give the public access to a large amount of copyright-protected works uploaded by its users which it organises and promotes for profit-making purposes.
When an OCSSP gives the public access to it, this is in itself a communication to the public or an act of making available. So, prior authorisation is required, e.g. through a licensing agreement.
Absent such an authorisation the OCSSP becomes directly liable itself, except in case it can demonstrate that it made best efforts to:
obtain an authorisation, and to ensure the unavailability of specific works for which the rightholders have provided them with the relevant and necessary information; and acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works and made best efforts to prevent their future uploads.
Users remain liable for their own uploading acts, except in cases where an authorisation was granted by rightholders to an OCSSP that covers their non commercial activity. In any case uploads that constitute a criticism or a parody must be excepted.
Member States of the EU have until 7 June 2021 to implement. The EU Commission is organising stakeholder dialogues on best practices. It will also issue a guidance document.