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(1) The ECJ had to consider the potential liability of Mr. Mc Fadden--running a business selling lighting and sound systems--for the use by a third party of the wireless local area network (WLAN) operated by Mc Fadden in order to make a phonogram produced by Sony Music available to the general public without authorisation. Mc Fadden operated his wireless LAN with anonymous access and free of charge in the vicinity of his business. Access was intentionally not protected in order to draw the attention of customers of near-by shops, of passers-by and of neighbours to his company. The referring court wanted to know whether the access provider exemption from liability might preclude from finding Mc Fadden liable, either directly or secondary. (2) Against this factual background, the ECJ concluded that (a) making a network...

The draft directive aims—inter alia—to close the so called “value gap” between Internet platforms and copyright holders. To that end, the proposed reform includes a provision that would impact platform operations. It requires intermediaries “that store and provide access to large amounts of works . . . uploaded by their users” to take appropriate and proportionate “measures to ensure the functioning of agreements concluded with rightholders for the use of their works” or “to prevent the availability on their services of such works,” including through “the use of effective content identification technologies.”

The Communication apparently endorses the plan of maintaining the existing intermediary liability regime. However, the Commission stresses that “a number of specific issues relating to illegal and harmful content and activities online have been identified that need to be addressed.” In this regard, the Commission would launch a “sectorial legislation … and problem-driven approach.” Apparently, this sectorial action will target copyright-protected content, minors’ protection from harmful content, and incitement through hatred. This should happen through a mix of legislative interventions—by updating the audiovisual and copyright regulations—and promotion of voluntary self-regulatory actions. The Communication puts forward the idea that “the responsibility of online platforms is a key and cross-cutting issue.”

The Commission anticipated that policy and legislative action would be taken in respect of: (1) exceptions and limitations; (2) exclusive rights, including both clarifying issues facing linking and considering whether any action specific to news aggregators is needed; and (3) enforcement, including Follow the Money strategies, commercial-scale infringements, application of provisional and precautionary measures, and injunctions and their cross-border effect. In connection with this Communication and the Digital Single Market Strategy (below), the Commission launched a Public Consultation on the Regulatory Environment for Platforms, Online Intermediaries, Data and Cloud Computing and the Collaborative Economy and will issue a report shortly.