Direct and indirect copyright infringement: proposal for an amendment of Directive 2001/29/EC (InfoSoc Directive)

Abstract

... After lengthy discussion in the Council and in the European Parliament, the proposed Directive on Copyright in the Digital Single Market (2016/0280(COD)) has now entered the trilogue. Much of the discussion in Parliament as well as in the media has been about the proposed Article 13, which concerns the liability of online content sharing service providers (OCSSs). The original proposal of the Commission1 contrasts with a more limited text of the Council2 and an even stricter text of the European Parliament.3 But the authors think that a clear, simple and reasonable solution cannot be achieved without amending the InfoSoc Directive. Thus, they present the following proposal for an amendment of the InfoSoc Directive. It is not limited to OCSSs, but tries to tackle the liability of intermediaries in general. The proposal builds on the recent judgments handed down by the Court of Justice of the European Union (CJEU) on communication to the public. Like the CJEU, the proposal distinguishes between direct acts of communication (eg uploads) and indirect acts of communicating (eg normal surface linking). The proposed amendment of Article 3 InfoSoc Directive and the newly proposed Article 4a InfoSoc Directive cannot settle all disputes issued. In some cases, it is up to the Parliament and the Council to decide whether particular categories of service providers are directly liable as content providers or only indirectly liable as intermediaries. But the authors hope to suggest a structure for the ongoing trilogue negotiations and any future discussion of liability for copyright infringement in European law.