Internet Service Provider Liability For Copyright And Trade Mark Infringement

This book critically evaluates the EU regulatory framework for the liability of host Internet Service Providers (ISPs) for copyright and trade mark infringements and provides a cluster of novel recommendations for its improvement. The book recommends the imposition of a duty of care to host ISPs to curb the dissemination of unauthorised works and counterfeit goods, the ascription of a transparency obligation to host ISPs towards their users, and the establishment of a supervisory authority for host ISPs. Host ISPs have facilitated the dissemination of content amongst users and the purchase of goods online, enabling copyright holders and brand owners to attract a greater audience for their works and goods. However, their services have attracted a high number of copyright and trade mark violations, too. Neither Article 14 of the e-Commerce Directive nor Article 17 of the Copyright in the Digital Single Market Directive provide a solid response to the issue of host ISPs' liability. This book is a valuable resource for researchers in IT and IP law and offers a new perspective for resolving online IP disputes.

With reports from all major jurisdictions where the responsibility of facilitators and intermediaries for copyright and trade mark infringement have been litigated, this very useful book is the first comprehensive global survey of the liability regime that intermediaries may face when assisting others to directly infringe copyright and trade mark rights, or when providing others with the means to do so. It addresses such issues as the following: ISP liability; contributory and secondary liability for trade mark, copyright, and patent infringement; time- and geo-shifting devices and services; consumer identification through dynamic IP addresses; infringements committed on a “commercial scale”; liability of hosting providers; requirements for a breach of duty of care; notice to users to refrain from infringements; filters and other due diligence measures; “actual knowledge”; privacy and infringers’ personal data; file sharing services; online storage services; and liability of transporters and freighters. After a general introduction analysing relevant aspects of trade mark and copyright law, local experts provide detailed reports on positions in the EU (at the Community level), Germany, France, Italy, The United States, Japan, Korea, Australia, and New Zealand. As well as dealing with the issues, each report pays close attention to case law, legislative developments, and procedural issues of injunctive relief and damages. A final chapter covers comparative contributory patent infringement. Along with the very practical value the book offers corporate counsel charged with IP rights litigation, the authors shed light on the fundamental issue of whether attempts to broaden liability in this area are compatible with established IP principles such as territoriality, freedom to operate, and freedom of competition. As a result, the book will be welcomed by a wide spectrum of lawyers and others working in this rapidly growing field, including practitioners, policymakers, academics, and jurists.

This book critically evaluates the EU regulatory framework for the liability of host Internet Service Providers (ISPs) for copyright and trade mark infringements and provides a cluster of novel recommendations for its improvement. The book recommends the imposition of a duty of care to host ISPs to curb the dissemination of unauthorised works and counterfeit goods, the ascription of a transparency obligation to host ISPs towards their users, and the establishment of a supervisory authority for host ISPs. Host ISPs have facilitated the dissemination of content amongst users and the purchase of goods online, enabling copyright holders and brand owners to attract a greater audience for their works and goods. However, their services have attracted a high number of copyright and trade mark violations, too. Neither Article 14 of the e-Commerce Directive nor Article 17 of the Copyright in the Digital Single Market Directive provide a solid response to the issue of host ISPs' liability. This book is a valuable resource for researchers in IT and IP law and offers a new perspective for resolving online IP disputes.

Despite the apparent advantages of the internet, there is little debate that it facilitates intellectual property infringements, including infringements of trade mark rights. Infringers not only remain hidden by the anonymity the internet provides but also take advantage of its increasing reach and the associated challenges with regard to cross-border enforcement of rights. These factors, among others, have rendered the internet a growing source of counterfeit and other infringing products. It has, therefore, become necessary for right holders to shift their focus from individual infringers to internet intermediaries, such as Internet Service Providers (ISPs), hosts and navigation providers, which are responsible in numerous ways for making content promoting infringements available to internet users. In light of these developments, this book conducts a comprehensive analysis of the liability of such intermediaries for trade mark infringements and considers the associated issues and challenges in the diverging approaches under which liability may be imposed. At present, however, neither UK trade mark law nor English common-law principles relating to accessorial liability provide a basis to hold internet intermediaries liable for trade mark infringements. As such, this book considers approaches adopted in some of the Continental European countries and the US in order to propose reforms aimed at addressing gaps in the existing legal framework. This book also examines alternative remedies, such as notice and takedown and injunctions, and discusses the associated shortcomings of each of these remedies.

This book analyses the doctrinal structure and content of secondary liability rules that hold internet service providers liable for the conduct of others, including the safe harbours (or immunities) of which they may take advantage, and the range of remedies that can be secured against such providers. Many such claims involve intellectual property infringement, but the treatment extends beyond that field of law. Because there are few formal international standards which govern the question of secondary liability, comprehension of the international landscape requires treatment of a broad range of national approaches. This book thus canvasses numerous jurisdictions across several continents, but presents these comparative studies thematically to highlight evolving commonalities and trans-border commercial practices that exist despite the lack of hard international law. The analysis presented in this book allows exploration not only of contemporary debates about the appropriate policy levers through which to regulate intermediaries, but also about the conceptual character of secondary liability rules.

Master's Thesis from the year 2011 in the subject Law - Civil / Private / Trade / Anti Trust Law / Business Law, grade: 16/20 , Leuven Catholic University (Faculty of Law), course: LL.M. Program, European IP Law & Business Law, language: English, abstract: ISP’s legal liability under trademark law with regards to Keyword Advertising is not well developed in literature and jurisdiction. Despite some few judgments in this field, it is obvious that also in other areas of law national courts do mainly focus on ISP’s secondary liability without any clear distinction from primary liability. There seems to be also some hesitation to base a primary liability on a failure to act. For that reasons this paper analyses primary liability of an internet reference provider like Google (TM) for Keyword Advertising under Art. 5 EU Trademark Directive taking into account not only positive activities but also a failure to act. Apart from storing Keywords and displaying ads also other contributions of Google like its Keyword Tool and approval process for ads or the ISP’s knowledge of infringements are contemplated. Starting point of the investigation is the recent decision of the ECJ to Google Adwords (TM)from 23.3.2010 where the court held that the provider can not be liable for a trademark infringement as the ISP did not use a sign itself in own commercial communication. The author goes beyond this judgment and suggests to apply this new criterion of attribution to all forms of trademark uses within the entire Art. 5 EU Trademark Directive including an omission of the provider. By establishing a link between Ecommerce Directive and Trademark Directive the writer defines the scope of trademark protection and examines some minimum requirements to identify a trademark infringement of the ISP. This is absolutely a new method as no literature exists. As a first main result it was found that Google is not directly engaged in a trademark infringement by its positive actions. By contrast, the research made clear that actual knowledge of ongoing infringements is the core element to establish a primary liability for a failure to stop or prevent trademark infringements and makes the ISP use a trademark itself in its own communication. This paper shall contribute to define a clear distinction between direct and indirect infringements and it also wants to sensitize the reader for the legal importance and consequences of actual knowledge of the ISP.

This book explores the contributory liability of Internet intermediaries that arises from trademark infringements committed by third parties on the Internet, providing a comprehensive analysis of the law applicable to the matter in an EU context. It also considers the applicable laws of Germany and England to demonstrate how the rules are implemented in national laws, as the current state of the law is two-tiered. In providing a framework of the law applicable to online contributory trademark liability, the book also addresses ongoing and emerging issues that are specific to trademark law and proposes specific solutions to the issues arising in the context of online contributory trademark liability. The liability of Internet intermediaries has been a popular and lively subject from different substantive rights’ angles. However, trademark law has not received a great deal of attention from either scholars or legislators. As such, this book fills a gap in the literature by undertaking a trademark-specific examination, and will be of great interest to all those involved in the research and legal practice of trademark law.