Grounds for Holding Online Intermediary Liable in Connection with Intellectual Property Rights Infringement

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The present study analyses the grounds on which an online intermediary can be held liable in connection with intellectual property rights infringement. Its purpose was to establish the forms of unlawful behavior in which the intermediary’s violation can be expressed and their influence on intermediary’s liability. This problem is of particular importance due to the fact that the Russian legal order has not yet formulated a sustainable approach to its resolution. The negative consequences of this gap are unjustified expansion of intermediaries’ liability and uncertainty of its regulation. In authors’ opinion, the expression «on general grounds» used by the legislator in Article 1253.1 of the Civil Code of the Russian Federation indicates the heterogeneity of the grounds of intermediary’s liability. Bearing this in mind, the article builds a system that would take into account the diversity of forms of intermediary’s participation in transmission of infringing content. The paper considers the most common options of the grounds of liability of online intermediaries. Using the experience of foreign legal orders, the possibility of their implementation in the Russian legal system is assessed. The authors come to the conclusion that the system of grounds of online intermediary liability should include unlawful use, failure to take measures to prevent or suppress infringement, participation in joint infringement of exclusive rights, as well as material contribution or inducement, which cannot be considered as joint tortfeasor ship. At the same time, the authors consider the application of such grounds as infringement of the right of authorisation and vicarious liability of intermediary for user’s actions to be inappropriate in the paradigm of Russian law. Each of the proposed grounds has its own scope of application, and the regime of liability arising from them is differentiated. In the framework of the proposed model, the scope of liability, its nature and available legal remedies are made dependent on the specific ground.