Closed Roundtable on Intermediary Liability

The European Harmonisation of Intermediary Accessory Liability for Online Copyright Infringement: at the Intersection of Tort Law and Fundamental Rights

13 April 2015, Institute for Information Law (IViR), Amsterdam.

“Vondelzaal” (University Library, Room C1.08),
Singel 421-427
1012 WP Amsterdam

Please note: Invitation only

Short Summary:
With the adoption and subsequent national implementation of the E-Commerce Directive, intermediary liability in Europe has been partly harmonised, although only to the extent that the safe harbours apply. Beyond that, the national rules of civil liability take effect. The substantive rules on the liability of internet intermediaries for the copyright infringements of their users thus remains an area of law currently almost entirely unharmonised in the EU. As a result, intermediaries that do not qualify for safe harbour protection face a fragmented European legal landscape.

This workshop will seek to explore the “secondary”, “indirect” or “accessory” liability (i.e. liability for infringements the material act of which is committed by another) in Europe of internet intermediaries for third party copyright infringement and the possibilities for the potential future EU harmonisation of the area. For this purpose it will examine the current state of the European harmonisation of intermediary accessory liability, selected national regimes, as well as how both EU fundamental rights law and European tort law can, and to what extent they should, help inform this difficult legal area. The idea shall be to bring together expertise from each of these diverse areas that all impact the issue of intermediary liability, so that answers may be found through the combination of the participants’ collective knowledge.

Draft Programme
(Moderator: Bernt Hugenholtz)

13:30 – 14:15: Liability for the acts of third parties: tort lessons for intermediary copyright liability
The workshop will begin with an exposition of the general tort rules on third party liability in English law. It will identify the various different forms of third party liability and emphasise the importance of the distinction between primary and secondary liability. The presentation will focus on accessory liability and an attempt shall be made to set forth the basic elements of this doctrine. Areas of uncertainty and confusion will be highlighted. It will be argued that judges and scholars alike often confuse accessory liability with other forms of third party liability. The objective shall be to highlight key lessons from English tort law which can be used to inform the European harmonisation project on intermediary copyright liability. The discussion shall then move to a comparison with civil law approaches to help further understand the underlying tort framework in Europe.

  • Presentation by: Claire McIvor
  • Comments by: Matthias Leistner
  • Discussion

14:15 – 15:00: Developing Eurocopytort: the European Harmonisation of Intermediary Liability for Third Party Copyright Infringement
Picking up where the first session left off, the second session shall begin with a brief examination of the current national regimes for intermediary accessory liability for online copyright infringement in a selection of three EU Member States: how do general national notions of accessory liability find their implementation in the national rules for intermediary liability for third party copyright infringement? It shall then move towards a description of the current state of the European harmonisation of intermediary accessory liability. On the basis of this comparative and multi-level analysis the session shall seek explore possible avenues for a future substantive European harmonisation of the area.

15:00 – 15:30: Coffee break

15:30 – 16:15: Copyright v Freedom of Expression and Privacy in Intermediary Liability Cases: Giving Content to the “Fair Balance”
Recent CJEU case law on intermediary liability has rested heavily on the notion of a “fair balance” between copyright and conflicting fundamental rights. But the vagueness of this basic rule offers limited guidance as to the appropriate solutions, while the individual cases heard shed light only on the specific circumstances that concerned them. As a result, rulings to date have failed to illuminate the boarder picture: when does copyright conflict with the freedom of expression and privacy rights of internet users and how can a fair balance be struck? This session shall seek to extrapolate from existing fundamental rights law in order to formulate useful guidelines for intermediaries.

16:15 – 17:30:  Roundtable Discussion: A Harmonised European Intermediary Accessory Liability for Online Copyright Infringement?

  • Bernt Hugenholtz (Institute for Information Law (IViR), University of Amsterdam)
  • Chantal Mak (Centre for the Study of European Contract Law (CSECL) and Amsterdam Research Institute for Legal Studies (ARILS), University of Amsterdam)
  • Christina Angelopoulos (Institute for Information Law (IViR), University of Amsterdam)
  • Claire McIvor (Birmingham Law School)
  • Egbert Dommering (Institute for Information Law (IViR), University of Amsterdam)
  • Irene Roche Laguna (DG CONNECT, European Commission)
  • Jeroen Kortmann (Stibbe N.V., Amsterdam/University of Amsterdam)
  • João Quintais (Institute for Information Law (IViR), University of Amsterdam)
  • Kamiel Koelman (Van Diepen Van der Kroef Advocaten, Amsterdam)
  • Matthias Leistner (Institute for Commercial and Economic Law, University of Bonn)
  • Paul Davies (St Catherine’s College, University of Oxford)
  • Stef van Gompel (Institute for Information Law (IViR), University of Amsterdam)
  • Stefan Kulk (Center for Intellectual Property Law (CIER), Utrecht University)
  • Stijn Smet (Department of European, Public and International Law, Ghent University)
  • Tarlach McGonagle (Institute for Information Law (IViR), University of Amsterdam)
  • Willem van Boom (Institute for Private Law, Leiden University)