Auteursrecht, intermediary liability, Kluwer Information Law Series
Book{ILS39,
title = {European Intermediary Liability in Copyright: A Tort-Based Analysis},
author = {Angelopoulos, C.},
year = {0101},
date = {2017-01-01},
keywords = {Auteursrecht, intermediary liability, Kluwer Information Law Series},
} algorithmic enforcement, Auteursrecht, censorship, Content moderation, Copyright, defamation, Digital services act, filtering, Freedom of expression, frontpage, general monitoring, hosting service, injunctive relief, intermediary liability, notice and stay down, notice and take down, safe harbour, trade mark, user-generated content
Report{Senftleben2020e,
title = {The Odyssey of the Prohibition on General Monitoring Obligations on the Way to the Digital Services Act: Between Article 15 of the E-Commerce Directive and Article 17 of the Directive on Copyright in the Digital Single Market},
author = {Senftleben, M. and Angelopoulos, C.},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3717022},
year = {1029},
date = {2020-10-29},
abstract = {EU law provides explicitly that intermediaries may not be obliged to monitor their service in a general manner in order to detect and prevent the illegal activity of their users. However, a misunderstanding of the difference between monitoring specific content and monitoring FOR specific content is a recurrent theme in the debate on intermediary liability and a central driver of the controversy surrounding it. Rightly understood, a prohibited general monitoring obligation arises whenever content – no matter how specifically it is defined – must be identified among the totality of the content on a platform. The moment platform content must be screened in its entirety, the monitoring obligation acquires an excessive, general nature. Against this background, a content moderation duty can only be deemed permissible if it is specific in respect of both the protected subject matter and potential infringers.
This requirement of \'double specificity\' is of particular importance because it prevents encroachments upon fundamental rights. The jurisprudence of the Court of Justice of the European Union has shed light on the anchorage of the general monitoring ban in primary EU law, in particular the right to the protection of personal data, the freedom of expression and information, the freedom to conduct a business, and the free movement of goods and services in the internal market. Due to their higher rank in the norm hierarchy, these legal guarantees constitute common ground for the application of the general monitoring prohibition in secondary EU legislation, namely Article 15(1) of the E-Commerce Directive (\'ECD\') and Article 17(8) of the Directive on Copyright in the Digital Single Market (\'CDSMD\').
With regard to the Digital Services Act (‘DSA’), this result of the analysis implies that any further manifestation of the general monitoring ban in the DSA would have to be construed and applied – in the light of applicable CJEU case law – as a safeguard against encroachments upon the aforementioned fundamental rights and freedoms. If the final text of the DSA does not contain a reiteration of the prohibition of general monitoring obligations known from Article 15(1) ECD and Article 17(8) CDSMD, the regulation of internet service provider liability, duties of care and injunctions would still have to avoid inroads into the aforementioned fundamental rights and freedoms and observe the principle of proportionality. The double specificity requirement plays a central role in this respect.},
keywords = {algorithmic enforcement, Auteursrecht, censorship, Content moderation, Copyright, defamation, Digital services act, filtering, Freedom of expression, frontpage, general monitoring, hosting service, injunctive relief, intermediary liability, notice and stay down, notice and take down, safe harbour, trade mark, user-generated content},
} book reviews, intermediary liability, Vrijheid van meningsuiting
Article{Hins2019b,
title = {Book review of Aleksandra Kuczerawy, Intermediary Liability and Freedom of Expression in the EU},
author = {Hins, A.},
year = {0822},
date = {2019-08-22},
journal = {Common Market Law Review},
volume = {56},
number = {4},
pages = {1154-1155},
keywords = {book reviews, intermediary liability, Vrijheid van meningsuiting},
} consumer survey, Copyright, enforcement, frontpage, intermediary liability, piracy
Article{Quintais2019f,
title = {The Decline of Online Piracy: How Markets – Not Enforcement – Drive Down Copyright Infringement},
author = {Quintais, J. and Poort, J.},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3437239},
year = {0820},
date = {2019-08-20},
journal = {American University International Law Review},
volume = {34},
number = {4},
pages = {807-876},
abstract = {This article deals with the acquisition and consumption of music, films, series, books, and games through the various legal and illegal channels that exist nowadays, in a set of thirteen countries across the globe. The article has four aims. First, it provides an overview of the rules on liability for and enforcement of online copyright infringement in the countries studied. Second, it gives factual information about the state of authorized and unauthorized acquisition and consumption of these types of content. The third aim is to evaluate the underlying mechanisms and the link with enforcement measures and legal supply. Lastly, the article assesses the effect of online piracy on consumption from legal sources. To further these aims, the article combines different sources and empirical methods, including consumer surveys among nearly 35.000 respondents and comparative legal research. Our main conclusion is that online piracy is declining. The key driver for this decline is the increasing availability of affordable legal content, rather than enforcement measures. Where the legal supply of copyright-protected content is affordable, convenient and diverse, consumers are willing to pay for it and abandon piracy. Policymakers should therefore shift their focus from repressive approaches to tackle online infringement towards policies and measures that foster lawful remunerated access to copyright-protected content.},
keywords = {consumer survey, Copyright, enforcement, frontpage, intermediary liability, piracy},
} Copyright, EU law, frontpage, hyperlinking, intermediary liability, right of communication to the public
Article{Quintais2018c,
title = {Untangling the Hyperlinking Web: In Search of the Online Right of Communication to the Public},
author = {Quintais, J.},
url = {https://onlinelibrary.wiley.com/doi/abs/10.1111/jwip.12107},
year = {0621},
date = {2018-06-21},
journal = {Journal of World Intellectual Property (forthcoming)},
volume = {2018},
pages = {1-36},
abstract = {This article examines the online right of communication to the public under EUlaw and its interpretation by the Court of Justice of the EU. The focus of the analysis is on the controversial application of the right to hyperlinking, and its implications for the online activities of users and intermediaries. After outlining the international and EU legal framework on the right of communication to the public, the article advances a conceptual framework for the interpretation of the exclusive right in the online environment, which is both based on, and attempts to bring coherence to, the Court\'s complex case law. On this basis, the article then explores and critically assesses the main areas of legal uncertainty for the online application of the right and the normative considerations at stake—especially fundamental rights and the promotion of technological development—offering interpretative and legislative solutions for their resolution. The article argues for abandoning the legislative proposals for a new right for press publishers and the so-called value gap, as both are fundamentally flawed. Instead, reform should focus on redefining the right of communication to the public and preserving safe harbors, especially for hosting providers.},
keywords = {Copyright, EU law, frontpage, hyperlinking, intermediary liability, right of communication to the public},
} CJEU, ECtHR, fair balance, frontpage, Fundamental rights, intermediary liability, notice-and-action
Article{Angelopoulos2017,
title = {Notice-and-fair-balance: how to reach a compromise between fundamental rights in European intermediary liability},
author = {Angelopoulos, C. and Smet, S.},
url = {https://www.ivir.nl/publicaties/download/Notice_and_Fair_Balance.pdf},
doi = {https://doi.org/http://dx.doi.org/10.1080/17577632.2016.1240957},
year = {0214},
date = {2017-02-14},
journal = {Journal of Media Law},
volume = {8},
number = {2},
pages = {266-301},
abstract = {In recent years, Europe’s highest courts have searched for the answer to the problem of intermediary liability in the notion of a ‘fair balance’ between competing fundamental rights. At the same time, the ‘notice-and-takedown’ system, which first emerged as a solution to intermediary liability in the 1990s, has spread across the globe, transforming along the way into an assortment of ‘notice-and-action’ variants that differ from country to country. In this article, we seek to examine how both these approaches to the intermediary liability question can be usefully combined. Interpreting ‘fair balance’ as a call for compromise, we propose a move away from the traditional ‘horizontal’ approach of the EU\'s safe harbour regime, towards a more ‘vertical’ scheme, whereby distinct ‘actions’ are tailored to diverse wrong-doings: notice-and-notice for copyright, notice-wait-and-takedown for defamation and notice-and-takedown and notice-and-suspension for hate speech. Notice-and-judicial-take-down can function as a complementary all-purpose solution. Automatic takedown and notice-and-stay-down are applicable exclusively to child pornography. We suggest that the resulting calibrated system can contribute to achieving a truer ‘fair balance’ in this difficult area of law.},
keywords = {CJEU, ECtHR, fair balance, frontpage, Fundamental rights, intermediary liability, notice-and-action},
} Data protection, Freedom of expression, Grondrechten, intermediary liability, Privacy, right to be forgotten, search engines, Vrijheid van meningsuiting
Article{nokey,
title = {Google Spain v. González: Did the Court forget about freedom of expression?},
author = {Zuiderveen Borgesius, F. and Kulk, S.},
url = {http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2491486},
year = {1030},
date = {2014-10-30},
journal = {European Journal of Risk Regulation},
number = {3},
abstract = {In this note we discuss the controversial judgment in Google Spain v. González of the Court of Justice of the European Union (CJEU). Our focus is on the judgment’s implications for freedom of expression. First, the facts of the case and the CJEU’s judgment are summarised. We then argue that the CJEU did not give enough attention to the right to freedom of expression. By seeing a search engine operator as a controller regarding the processing of personal data on third party web pages, the CJEU assigns the operator the delicate task of balancing the fundamental rights at stake. However, such an operator may not be the most appropriate party to balance the rights of all involved parties, in particular in cases where such a balance is hard to strike. Furthermore, it is a departure from human rights doctrine that according to the CJEU privacy and data protection rights override, “as a rule”, the public’s right to receive information. In addition, after the judgement it has become unclear whether search engine operators have a legal basis for indexing websites that contain special categories of data. We also discuss steps taken by Google to comply with the judgment.},
keywords = {Data protection, Freedom of expression, Grondrechten, intermediary liability, Privacy, right to be forgotten, search engines, Vrijheid van meningsuiting},
}