title: An Evaluation of the EU Regulatory Framework for Hosting Information Society Service Providers’ liability for Copyright and Trade Mark Infringements: Criticisms, Challenges and Recommendations
Creators: name: Krokida, Zoi
Publisher: name: University of Reading
Year: 2024

description: Hosting information society service providers (hosting ISSPs) have facilitated the exchange of content between users and the purchase of goods online, enabling copyright holders and brand owners to attract a greater audience for their works and goods. However, those services have attracted a high number of copyright and trade mark violations. Seeing their rights to be infringed, copyright holders and brand owners seek redress against hosting ISSPs requesting either monetary damages or injunctive relief. The main legislative tools that regulate hosting ISSPs’ liability towards copyright and trade mark infringements that accrue within their networks are the E-Commerce Directive (EC) 2000/31/EC (ECD) and the Copyright in the Digital Single Market Directive (EU) 2019/790 (DSMD). Yet, both legislative tools fail to accommodate the interests of the parties involved. In particular, Article 14 of the ECD addresses the liability of hosting ISSPs for infringements that are committed by their users. However, it provides defences for hosting ISSPs to escape from liability and thus refrains from defining hosting ISSPs’ liability. For this reason, the national courts within the EU use their national tortious secondary doctrines in order to ascribe liability to hosting ISSPs for infringements within their networks. Yet, given that secondary liability is not harmonized at European level, secondary tortious law doctrines are heterogenous and therefore fail to offer a uniform and solid response to the hosting ISSPs’ liability conundrum. As a corollary, the fundamental rights of intellectual property holders, hosting ISSPs and internet users are subordinated. On the other hand, Article 17 of DSMD is relatively new but a number of problematic aspects have already been identified. Article 17 of the DSMD addresses the liability of a new type of hosting ISSPs, the online content sharing service providers (OCSSPs). It introduces a primary liability regime which conflicts with the rationale of a secondary liability regime as set forth in Article 14 of the ECD. It endorses a licensing system for the OCSSPs and a notice and stay down mechanism. As corollary, Article 17 of the DSMD might give rise to tantamount concerns with regard to protection of different interests at stake, namely the rights of internet users and hosting ISSPs. In the midst of the uncertainty that is created by the existing legislative tools that address hosting ISSPs’ liability and OCSSPs’ liability, this thesis offers an array of novel suggestions with regard to the EU regulatory framework of hosting ISSPs with regard to copyright and trade mark infringements within their networks. Based on a thorough examination of normative and theoretical considerations along with a bedrock of court rulings and policies across the EU borders, this thesis recommends the ascription of a number of responsibilities to hosting ISSPs through which they should be accountable to a hosting ISSP supervisory authority. The proposed regulatory framework takes into consideration to a great extent the different interests at stake and thus safeguard fundamental rights, as they are explicitly included in the EU Charter of Fundamental Rights, namely the right of hosting ISSPs to operate their business, the right of internet users to freedom of information and expression and the right of intellectual property holders to achieve protection for their rights.