The Liability of Internet Service Providers for Copyright Infringements: exception to copyright protection derived from freedom of expression

Abstract: The question of secondary liability of internet intermediaries for illegal content online is closely linked to the enjoyment of freedom of expression that has to be guaranteed both online and offline. The provisions concerning internet service providers’ liability in Europe include ‘notice and take down’ procedure, blocking measures and injunctions against intermediaries, which are all well-designed to protect right holders, however these rules do not properly take into consideration the concerns of securing freedom of speech on the internet. The aim of this thesis is to analyse the current role of fundamental freedom of expression in shaping the rules of ISP liability with the focus on copyright infringements online. The questions to answer are inter alia what is the relationship between two European courts when it comes to the interpretation of fundamental rights and freedoms; whether internet service providers can rely on the arguments deriving from freedom of expression in order to defend themselves against claims of copyright infringement, and whether internet intermediaries should be able to rely on these arguments based on their special role of providing access to information and cultural goods in information society. In order to answer these questions, current thesis concludes that current rules governing internet service providers in the European Union overlook the arguments of freedom of expression and do restrict the enjoyment of this basic right perhaps too much than necessary. In addition these provisions are outdated and rigid in order to be applicable to the rapid technological changes and the variety of available internet services. In order to overcome these shortcomings, current thesis focuses on the possibility to introduce a new exception to copyright protection based on public interest that could include the widest range of internet intermediaries that could be exempted from the liability for third parties’ copyright infringements online. Finally, current thesis concludes that the introduction of new exception is impeded by the adopted harmonising legislation in the European Union, and by the current international interpretation of the three-step test in TRIPS Agreement. However, these obstacles do not mean that the state of law has to stay unchanged.