This year could be incredibly ground breaking for European safe harbours. Despite of many preliminary questions, it´s unlikely (still believe in TM issue) that all of them are going to be answered. Although i think they should be (not just because of my interest). So let´s sum up, what we have at the "porch" of the Court of Justice :
Interpretation of particular types
Decision is scheduled on 23 of March. I´m not gonna sleep that night probably and i guess austrotrabant so :)
a) mere conduit,
b) hosting, or
c) caching exemption ?
b) if the use does not consist exclusively of activities falling within the scope of Article 14(1) of the E-Commerce Directive [hosting], but includes such activities, is the operator of the online marketplace exempted from liability to the extent that the use consists of such activities and if so may damages or other financial remedies be granted in respect of such use to the extent that it is not exempted from liability? [i am just guessing that point of this question resides in the fact that most of the people admit that text and links of ads in AdWords should be covered by hosting exemption, but aren´t sure about the keywords, am i right ?]
All of above mentioned references will be answered only if the act of buying competitor´s keyword is regarded trademark use. Btw, will the EU change a trademark law due to result of "AdWords" cases?
Actual knowledge / awareness
a) in circumstances where the operator of the online marketplace has knowledge that goods have been advertised, offered for sale and sold on its website in infringement of registered trade marks, and that infringements of such registered trade marks are likely to continue to occur through the advertisement, offer for sale and sale of the same or similar goods by the same or different users [sic!] of the website, does this constitute "actual knowledge" or "awareness" within the meaning of Article 14(1) of the E-Commerce Directive?
Answered only when the act of buying competitor´s trademark as a keyword, is regarded to be trademark use.
The scope of injunctive relief
a) Where the services of an intermediary such as an operator of a website have been used by a third party to infringe a registered trade mark, does Article 11 of European Parliament and Council Directive 2004/48 of 29 April 2004 on the enforcement of intellectual property rights ("the Enforcement Directive") require Member States to ensure that the trade mark proprietor can obtain an injunction against the intermediary to prevent further infringements of the said trade mark, as opposed to continuation of that specific act of infringement, and if so what is the scope of the injunction that shall be made available? [normative (not ad hoc) injunction sounds to me]
- Sabam vs. Scarlet C-Not/Yet - abstract (normative) injunctive relief
a) does the "no-monitor obligation" prohibit an injunction compelling an ISP to filter P2P communications [normative (not in particular case) measure] ? if no,
b) does the EC law require that the national court applies the principle of proportionality when it is asked to rule over the efficacy and the dissuasive effect of the requested measure?"
At this point, please consider also fresh landmark decision in C-555/07 Seda Kücükdeveci (horizontal direct effect of principles of Community law expressed in the directive - great coverage here)
- Promusicae C-275/06 - Community law does not require any disclosure of users IP address in the civil proceeding.
Community law requires that, when transposing those directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality. [try to read it together with Kücükdeveci decision, suddenly it makes more sense to me
"No general obligation to monitor" (art. 15 of e-commerce directive) reads
(1) Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.
(2) Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.
Art. 11 of enforcement directive reads: Member States shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement ... Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive 2001/29/EC.
Recital 15 reads : This Directive should not affect substantive law on intellectual property, Directive 95/46/EC of 24 October 1995 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data 1, Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures 2 and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market 3.
Art 8(3) of Information society directive says : Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.
Recital (59) thereof reads : In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an end. Therefore, without prejudice to any other sanctions and remedies available, rightholders should have the possibility of applying for an injunction against an intermediary who carries a third party's infringement of a protected work or other subject-matter in a network. This possibility should be available even where the acts carried out by the intermediary are exempted under Article 5. The conditions and modalities relating to such injunctions should be left to the national law of the Member States.
- Nobody would probably contest individualized (ad hoc) injunctions. Those are grounded as follows :
Mere conduits (art. 12), caching services (art. 13): This Article [liability exemption] shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement.
Bit different on hosting (art. 14): This Article [liability exemption] shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information [second part of the sentence it´s just a reference to notice and take-down procedures].
So the crucial question stands, whether "no general obligation to monitor" (art. 15) preclude court or administrative authority from ordering normative (abstract) measure, e.g. to filter the content (L´Oreal, Sabam). And if so whether it´s proportional solution to that problem.
ehm ... what about duty of care ?
Well, in my opinion "no general obligation to monitor" is inconsistent with duty of care (obligation to prevent harmful activity) but only till there isn´t any knowledge of illegal activity. Problem appears after the notice of the rights-holder. In the Rolex vs. Ricardo court basically said that auction site should apply ‘technically possible and justified ways of avoiding further infringements’ but stressed that it could ‘not be required to monitor every offer entered into the system for possible trade mark infringements’. So where´s threshold ?
PS: As far as i know just one another case C-298/07 interpret e-commerce directive (2000/31/ES). Nonetheless this have nothing to do with safe harbours...