Tuesday, September 23, 2014

New Paper On Novel Type of Injunctions Against Intermediaries

The readers interested in questions of intermediary liability, injunctions and online enforcement might be interested in a new paper authored by me and my friend Miquel Peguera. It is a substantially revised version of a working paper that was previously made available on SSRN in July this year. Since the copyright policy of the journal (IIC) requires us to remove the paper after its publication from SSRN for two upcoming years, I encourage all the interested readers to download it as soon as possible.

In this article we examine the legal framework of the European Union for injunctions against intermediaries whose services are used by a third party to infringe an intellectual property right, as set forth in the InfoSoc Directive and the Enforcement Directive. In particular, we consider the conditions to apply for the injunctions, taking into account how those conditions have been construed by the CJEU. We explore which is the minimum floor of injunctive relief Member States are obliged to provide under the Directives, as well as the maximum ceiling allowed, beyond which the protection granted would infringe upon the limits imposed by the EU Law. Next, we move to consider a particular type of injunctions that rights holders may apply for against intermediaries on the basis of Art. 8(3) of the InfoSoc Directive, namely those that would consist of enjoining an ISP from providing internet access to one of its users allegedly engaging in copyright infringement. A case already decided in Spain, Promusicae et al v. R Cable y Telecomunicaciones Galicia, granting such an injunction serves us as a study case to assess the problems these remedies face.

On the one hand, these privately litigated internet disconnection injunctions may be seen by rights holders as a promising tool to fight online copyright infringement – maybe an alternative to unsuccessful graduate response schemes. However, as we show in the article, these injunctions raise serious issues regarding their compatibility with the EU Charter of Fundamental Rights. Indeed, the possibility of effective and human-right-conform injunctions of this kind turns up to be very narrow. In other words, the Directive's provisions promise much, but if applied correctly, they deliver little.

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