Conference: Copyright and Freedoms in a Digital Europe: Liability of Intermediaries

by andreahebrard

Last Tuesday 10th of March a conference on “Copyright and Freedoms in a Digital Europe: Liability of Intermediaries “ was held in the Wolfson Theatre of the LSE New Academic Building.

The conference was organised by LSE Media Policy Project and the LSE law department, and was chaired by Anne Baron an Associate Professor in the LSE department of law.

“Rights holders in the music and film industries often criticise internet intermediaries and service providers for not doing enough to enforce copyright. Under current European Union policy, intermediary liability is enshrined in three directives: the Copyright Directive (2001), the E-commerce Directive (2000) and the IPR Enforcement Directive (2004), all of which allow for the possibility of copyright-holders suing an intermediary. A review of the Copyright Directive is just beginning, and reviews of the latter two commenced in 2012. At stake is the whether online intermediaries such as search engines, social media platforms and cloud computing services and/or internet service providers managing the networks should police content that is alleged to be infringing copyright.” 1

The speakers were, Dr Monica Horten, Geoff Taylor and Nicholas Lansman.

“Dr Monica Horten is a visiting fellow in LSE’s Department of Media and Communications, and an LSE author. Her book A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms was published in 2013 by Zed Books. Her other published work includes The Copyright Enforcement Enigma: Internet politics and the Telecoms Package (Palgrave Macmillan, 2012), and she writes the IPtegrity blog on EU Internet policy. She has been cited in international media as diverse as The New York Times, Dagens Nyheter and Corriere della sera. In January 2014, she was nominated as an independent expert to the Council of Europe’s ‘Committee of experts on cross-border flow of Internet traffic and Internet freedom’ (MSI-INT).

Geoff Taylor is the CEO of The British Recorded Music Industry (BPI) and Director of both the Official Charts Company and BRIT Awards Limited, as well as a Governor of the BRIT School for the Performing Arts & Technology and a Trustee of the UK music business’ charity, The BRIT Trust. Prior to joining BPI in 2007 he served as General Counsel and Executive Vice-President at the international record industry association, IFPI after several years working in private legal practice focused on EU and competition law.

Nicholas Lansman is founder and CEO of Political Intelligence, a Europe-wide political communications firm. Political Intelligence advises a range of companies and organisations in a broad range of industry sectors including technology, media and communications. Nicholas has been Secretary General of ISPA UK, which represents the interests of the internet industry in the UK, since assisting with the establishment of the trade body in 1995. In 1997 Nicholas set up EuroISPA – the European Internet trade association which represents the internet sector at EU-level in Brussels.” 2

Each of the speakers had ten minutes to express their views on the matter.

Geoff Taylor:

Intermediaries, for example Google, constitute a huge demand; they represent an important part in the digital economy. According to him intermediaries should have a moral and ethical responsibility; this type of responsibility being more important than a legal one. The law does not reflect this ethical behavior so the law still needs to improve on this matter. He took the example of the internet search engines which should be liable at least in order not to have appeared on their first search results infringing websites. He then suggested to resolve this problem business to business for example via advertisements.

Nicholas Lansman:

Internet Service Providers (ISP) are blamed by the creative industries because they do not want to endorse the role of the internet police. ISP liability is still very limited even after two decades of policy conducted on the digital area. He did express his opinion through an historical summary on ISP liability. First, the court would tell ISP that they were hosting illegal contents and ISP would take them out. Secondly, the Industry moved towards the blocking of contents (eg. the Pirate Bay case). Then, some public entities were put into place to police online contents for example the Hadopi commission in France. Some legislation attempts were made like the digital economy Act in UK, this proved itself not to be efficient enough. Also, the press can exercise an important external pressure on the ISP to block the online expansion of pornographic, terrorism, bullying (and so on) contents. According to him, this inconsistency on ISP liability represents an“Animal Farm argument” because every stakeholder wants to protect its own interests and benefits. He then described the current situation. At the present, many improvements have been done for consumers. There are lot of choices to have access to online legal contents. So there is a flexibility in the accessibility of legal contents. Then he concluded on the future expectations. He suggested that there is a general expectation for a copyright reform; a reform which would properly balance commercial platform interests and copyright.

Dr Monica Horten:

She talked about the issue of Freedom of Expression in the digital Europe. She clearly expressed the fact that she was not talking about the blocking of illegal contents but the problem of the blockage of legal contents. ISP can block illegal contents but also legal ones; arguably this blockage of legal contents would count as being against free speech. She illustrated the problem of over blocking using the pirate bay case: 65% of the contents were protected by copyright and 35% were not; these 35% of contents were therefore legal. So, ISP could not distinguish between lawful and unlawful contents when over blocking, and this automatically count as an interference to freedom of expression. According to Dr Monica Horten, consumers expect that intermediaries do not interfere in their actions; consumers have a notion of freedom without interference. But today the problem of interference does not come from the States but from private companies. A bigger interest to copyright is developing because consumers are worried about their human rights being interfered. Finally, she considered an option; the European Union is currently preparing a Directive on the subject and should consider the fact that policy could put freedom of speech at risk.

On a personal note. The conference was very interesting and worth going; but its main subject seemed to be a bit left out. Moreover, the conversation was more focused on the music industry and others creative industries were hardly mentioned. Finally, a lawyer expertise was missing in the debate.

Andréa Hebrard is LLM Candidate at Queen Mary University of London and is working as a Queen Mary Intellectual Property Research Institute (QMIPRI) Student Research Fellow and Assistant Editor of Queen Mary Journal of Intellectual Property (QMJIP).