Injunctions Against Online Intermediaries Towards a Balanced Model for International Harmonisation

Abstract

The development of internet brought many challenges to the traditional intellectual property rights protection and enforcement, particularly copyright. Web 2.0 interactive websites, besides contributing to a wider distribution of new literary and artistic works, also allow the illegal copy and spread of protected contents by “anonymous” users with almost no costs. In this scenario, internet intermediaries are seen as the key to the combat of online piracy, since they are in a privileged position to identify infringers and to implement technologies destined to remove infringing material. Considering that injunctions against intermediaries may have severe consequences for the fundamental rights of other internet players, it is essential to define clear limits in an attempt to achieve a fair balance of those interests. Furthermore, since the internet is a reality without borders, an international definition of those boundaries would contribute to a more effective system for combat to copyright infringements. While in some cases the similarities between the practices permit an international harmonisation, in other circumstances minimum protection may be considered a large step towards a more harmonised enforcement system. After outlining the main fundamental rights involved, this work identifies the most commonly issued injunctions against intermediaries and the limits imposed by the European Union jurisdiction in the light of those fundamental rights. Furthermore, it examines the new challenges brought by the Proposed Copyright Directive and the main limits imposed by the United States framework. Finally, after concluding for the need of an internationally harmonised regime, this work identifies the major shared aspects and practices found in both the European Union and the United States legal systems and extracts the common principles that may serve as a basis for an international model that provides higher harmonisation, brings legal certainty and fixes the necessary limits to reconcile all the fundamental rights involved.