I encourage you to read latest post on ACTA by EFF. And also leaked comments of European Commission (EC) to US proposal of ACTA provisions. What i´ve found (inter alia) interesting is a part of this document, which relates to information location tools liability regime. EC provided it´s short opinion on safe harbour provisions in Electronic Commerce Directive in regard to it´s appliance to linking and search engines.
It reads :
Referring or linking to an online location – refers, according to US, to "search engines". As regards "non-commercial" hyperlinks, these could, in our view, be accepted as an extension of "hosting" (ECD, Article 14). Such hyperlinks are not explicitly regulated by the ECD. The liability of providers for hyperlinks and location tool services has been deliberately left out from the scope of the ECD. However, we believe that non-commercial hyperlinks could be treated as a hosting activity under Article 14 ECD.
How did they came up with this idea (commercial vs. non-commercial)? By saying "believe it ... could be", do they mean by extensive interpretation or per analogy from current legislation? It makes me wonder, because as i read from first report on possible revision of the electronic commerce directive, it was EC who was reluctant enough to propose new safe harbour for information location tools as search engines and hyperlinks. And it´s not the case when lot of scholars haven´t proposed. Indeed plenty of them critised this "deliberate left out". I reckon there should be strong debate on enacting proper approach for search engines and hyperlinks, as it´s not only about selecting "austrian" (mere conduit) or "spanish" (hosting) approach. It goes far beyond (economic, social implications). Maybe General Advocate´s opinion in AdWords in footnote 72 could be suggestive as well :
In my view, it would be consistent with the aim of Directive 2000/31 for Google’s search engine to be covered by a liability exemption. Arguably Google’s search engine does not fall under Article 14 of that directive, as it does not store information (the natural results) at the request of the sites that provide it. Nevertheless, I believe that those sites can be regarded as the recipients of a (free) service provided by Google, namely of making the information about them accessible to internet users, which means that Google’s search engine may fall under the liability exemption provided in respect of ‘caching’ in Article 13 of that directive. If necessary, the underlying aim of Directive 2000/31 would also allow an application by analogy of the liability exemption provided in Articles 12 to 14 thereof.
Please note that AdWords isn´t case about natural results, but sponsored one. Maduro goes beyond case merits by leaving this comment. However, on the other hand Maduro made some reference to condition of neutrality for intermediary, which i didn´t get really for now.
Some other good points to read in comments on ACTA.
- contributory liability,
- notice-and-take down procedures,
- altered and new safe harbours,
- filtering / three strikes provisions,
- technical protecting measures,