The Role of Internet Intermediaries in Copyright Law Online Enforcement

Abstract

This chapter discusses the importance of copyright law enforcement as a prerequisite for the emergence of a digital single market. It firstly analyzes the reasons for the current crisis in copyright law enforcement and focuses on the role of Internet intermediaries in this context. The question is examined of whether the Internet intermediary’s liability should have been abandoned 15 years ago with the enactment of the E-commerce Directive, whereby the intermediaries’ safe harbor was established. However, this chapter shows that the law itself, together with an audacious jurisprudential interpretation, leads in practice to the application of a fault-based approach to Internet intermediaries’ liability. As this evolution is obviously not sufficient to resolve the issue of online enforcement of copyright law, this analysis is supplemented by the emerging topic of gag orders. This method, combined with the trends in case law related to pan-European judicial orders, despite being incomplete, nowadays offers the most promising solution towards effective copyright law enforcement.