Chapter 25: Enforcement in a digital context: intermediary liability
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One of the core IP battlegrounds of the past 15 years has been the scope and meaning of the various internet safe harbours that were enacted around the world in the early 2000s. The intention was to provide a safe space for intermediary platforms and communications providers, encouraging investment in new digital business models and the development of ecommerce. But this opportunity for new markets and new trade came at a cost. The scale and rapid ubiquity of the internet meant that infringement became global and democratised – everyone could do it, from anywhere – and its centre of gravity also moved from fixed line to mobile. In parallel, rights holders complained that the safe harbours offered to internet intermediaries disincentivised those intermediaries from taking reasonable steps to combat infringement. As digitisation has gathered pace and the economic power of these intermediaries has grown, this argument has intensified, with increasing calls for the safe harbours to be modified so as to remove some of the economic (and social) power held by technology companies. With major internet intermediaries playing a fundamental role in electronic communications and media distribution, questions of liability and how rights holders can protect and enforce their rights are increasingly important, and politically charged. This chapter explores the application and scope of the EU’s safe harbour regime, contrasting it with the other major global safe harbour regime, the United States’ combined framework incorporating the Communications Decency Act and Digital Millennium Copyright Act. We will end by looking at the key EU proposals for legislative change (as at the time of writing) and what the future may hold for intermediaries and rights holders alike.

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Edited by Tanya Aplin