Why a Reform of Hosting Providers' Safe Harbour is Unnecessary under EU Copyright Law

摘要

In the context of its Digital Single Market Strategy (DSMS) the EU Commission is currently engaged in a discussion of whether the liability principles and rules envisaged by Directive 2000/31 (the E-Commerce Directive) should be amended. One of the principal concerns in relation to unlicensed online intermediaries (notably unlicensed hosting providers) is that these have been increasingly said to invoke the safe harbour immunities in the E-Commerce Directive lacking the conditions for their application. This alleged abuse has led to a distortion of the online marketplace and the resulting "value gap " indicated by some right holders. This contribution discusses a recent proposal advanced in France which asks for the removal of the safe harbour protection pursuant to art. 14 of the E-Commerce Directive for hosting providers that give access to copyright works. After addressing some of the points raised by the French proposal, this work concludes that the Court of Justice of the EU (CJEU) has not erred in its interpretation of relevant provisions of the E-Commerce Directive and that-in practice-the removal of safe harbour protection for passive hosting providers that give access to copyright works would not provide any distinct advantages to right holders. Overall, the current framework already provides an adequate degree of protection: what is required is a rigorous application by national courts of the principles enshrined in the E-Commerce Directive, as interpreted by the CJEU.