Why a reform of hosting providers’ safe harbour is unnecessary under EU copyright law

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 Ecommerce 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 Ecommerce 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 rightholders.

This contribution discusses a recent proposal advanced in France which asks to remove the safe harbour protection pursuant to Article 14 of the Ecommerce 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 European Union (CJEU) has not erred in its interpretation of relevant provisions of the Ecommerce 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 rightholders. 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 Ecommerce Directive, as interpreted by the CJEU.

This paper will be appear in European Intellectual Property Review, published by Sweet & Maxwell, in Issue 11 of 2016.