• Share
  • Email
  • Embed
  • Like
  • Save
  • Private Content
Recent European Litigation on the Legality of Internet Filtering for Copyright Reasons
 

Recent European Litigation on the Legality of Internet Filtering for Copyright Reasons

on

  • 1,387 views

Darius Whelan ...

Darius Whelan
University College Cork
Global Congress on Intellectual Property and the Public Interest
American University Washington College of Law
Washington, DC, August 2011

Statistics

Views

Total Views
1,387
Views on SlideShare
1,380
Embed Views
7

Actions

Likes
2
Downloads
5
Comments
0

3 Embeds 7

http://us-w1.rockmelt.com 3
http://www.linkedin.com 3
http://twitter.com 1

Accessibility

Categories

Upload Details

Uploaded via as Microsoft PowerPoint

Usage Rights

CC Attribution License

Report content

Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
  • Full Name Full Name Comment goes here.
    Are you sure you want to
    Your message goes here
    Processing…
Post Comment
Edit your comment

    Recent European Litigation on the Legality of Internet Filtering for Copyright Reasons Recent European Litigation on the Legality of Internet Filtering for Copyright Reasons Presentation Transcript

    • Recent European Litigation on the Legality of Internet Filtering for Copyright Reasons
      Darius Whelan, University College Cork
      Global Congress on IP and the Public Interest, Washington, August 2011
    • E-Commerce Directive
      • Art. 12 – mere conduits
      • Art. 15 – no general obligation to monitor
      • Recital 45 – injunctions
      Copyright InfoSoc Directive
      • Recital 16 - without prejudice to E-Commerce Directive
      • Art. 8(3) - injunctions against intermediaries
      Enforcement Directive
      • Art.11 injunctions
      Framework Directive 2009
      • Respect fundamental rights
      • Due Process / judicial review
      2
    • EMI v UPC (2010)
      Internet Piracy devastating music business
      Privacy – not infringed. IP addresses just a set of numbers.
      Copyright is private property right
      Irish Act (2000) only permitted orders re “removal” but UPC is mere conduit
      Art.15 no general obligation to monitor not relevant
      Did not grant order due to wording of Irish Act
      Previous Irish “three strikes” settlement still in place
      3
    • 4
    • Scarlet v Sabam (2011)
      5
      Opinion of Advocate General. Not binding
      Very wide Belgian court order in issue
      Order unduly restricts privacy / personal data
      Law should be accessible, clear and predictable
      Filtering and blocking not accompanied by adequate safeguards
    • 6
    • R. (BT and TalkTalk) v SS BIS (2011)
      Digital Economy Act 2010
      Role of ISPs “passive”
      Mere conduit issue – ISPs were not being made liable for the info. transmitted
      Proportionality? Parliament had struck balance
      Code could deal with library hot-spots, etc.
      IP addresses are personal data
      Derogation under E-Privacy Directive – right to property
      No reference of questions to ECJ
      7
    • 8
    • Newzbin 2 case (2011)
      9
      Order to block access to Newzbin site
      Contrasted with Scarlet v Sabam
      Art. 1 First Protocol ECHR – property rights
      Art. 10 ECHR – freedom of expression
      Apply copyright legislation in manner which accommodates freedom of expression
      Deference to Parliament
      Claimants’ property rights clearly outweighed FoE rights of newzbin users, and even more clearly outweighed FoE rights of operators of newzbin
    • 10
    • Conclusion
      Lack of clarity re some key issues in European law, e.g. ambiguity about due process in Framework Directive; Promusicae balance unclear
      Due Process arguments have potential. Also art.6 ECHR.
      Note relationship property rights Art.1 First protocol and other rights such as privacy and FoE. More nuance in newzbin 2 case on this – apply legislation in manner which accommodates FoE
      Can internet users waive fundamental rights? Is it proportionate? Are customers aware of click-wrap terms? Couldn’t files have been downloaded by person not a party to contract?
      11
    • 12
      Courts’ approaches affected by attitudes. EMI v UPC – anger at copyright violations. Scarlet – More concern about internet users’ rights
      Scarlet case very successful from human rights perspective, but very much affected by facts of case
      Orders against ISPs inherently questionable – result in over blocking and under blocking; users can circumvent blocking systems; orders interfere with net neutrality