As the Internet facilitates nearly costless and limitless reproduction of copyrighted works, policy makers and courts have struggled to find the right balance between competing goals. These include: 1) mitigating risks and providing legal certainty to Internet intermediaries that transmit or host content; 2) allowing copyright owners to fight piracy and unlawful use of protected works; and 3) safeguarding the interests of internet users in finding, producing, remixing, and transmitting content through the Internet.
In the United States, Section 512 of the Digital Millennium Copyright Act (DMCA), protects intermediaries who meet certain conditions from damages for copyright infringing activities of their users or third parties. To benefit from these so-called safe harbors, intermediaries must -- among other things -- remove infringing content upon knowledge and implement a system to receive notifications about the existence of copyright infringing material on their platforms. The DMCA spells out additional detailed procedures, including the possibility for accused users to provide ‘counter-notice’ and have content reinstated.
The general notice and takedown standard created by the DMCA was replicated in domestic legislation of many other countries. Similar knowledge-based liability models exist in multiple jurisdictions to allow the removal of other types of unlawful content - for example, under the EU’s eCommerce Directive and South Korea’s copyright law. Despite the broad adoption of these standards, the model has been criticized from many different perspectives.
On one side, some public interest groups and academics argue that the notice-and-takedown system provides incentives for intermediaries to err on the side of removal to avoid liability, leading to the suppression of perfectly legal content (this argument is supported by empirical studies documenting over-removal). To address these problems, different countries have created variations on the system. Chilean legislation, for example, establishes that intermediaries will only lose the safe harbors against monetary liability if they fail to comply with a court order requiring the removal of infringing content, while the Canadian legislation (learn more about it here) establishes a notice and notice system, requiring that the intermediary forward the notification of infringement to the user that posted the allegedly infringing material.
On the other side, copyright owners assert that more should be done by intermediaries to protect intellectual property online. In particular, many have argued for the use of technical filters to prevent reappearance of new copies once content has been removed based on a takedown request. This model (labeled by some as "notice-and-staydown") raises multiple concerns about threats to the rights of Internet users, as well as possible harms to competition and innovation, if Internet platforms are required to constantly monitor their users' expression. For more on this, see the Topic Page on Monitoring Obligations.
Complex issues of intermediary liability under copyright law go far beyond the examples above. They include questions about use of automation by either copyright claimants or intermediaries under notice and takedown systems (see this study) and questions of liability under background copyright law, outside of statutory notice and takedown regimes. This includes evolving case law in Europe regarding intermediaries’ liability for linking to infringing content.
Below, you can find the entries tagged as Copyright in the WILMap database. Check out the highlighted entries to explore some of the most important legislative approaches to copyright and intermediary liability, and to learn more about proposals for copyright reform currently under debate.
Please let us know if you identify any important development that should be included in the World Intermediary Liability Map database.
Other Resources
For more information on copyright issues, check the Kluwer Copyright Blog and the IPKat blog.