Internet Intermediaries and Copyright Enforcement in the EU: In Search of a Balanced Approach

Ever since the commercialization of the Internet, the role of Internet intermediaries has been of vital importance for the functioning of the globalized electronic market and the innovation technologies of information dissemination in general. The importance of the role of the Internet intermediaries has been reflected in the basic legislative initiatives regarding the Internet worldwide. In Europe, following the example of the Communications Decency Act (CDA) and Digital Millennium Copyright Act (DMCA) in the United States, Articles 12–15 of the E-Commerce Directive aimed to create an immunity regime that would allow the Internet intermediaries to develop their activities without being hindered by the fear of complex liability issues connected with their sensitive role. At the same time, though, it became apparent that Internet intermediaries are playing a pivotal role in the protection of intellectual property rights in an online world, as they are in the best position to either prevent or bring intellectual property infringements to an end. This observation was also reflected in the EU legislation, as Articles 12, 13 and 14 of the E-Commerce Directive, Article 8 of the InfoSoc Directive and Article 9 and 11 of the Enforcement Directive provide for a series of interim measures that allow legal action against Internet intermediaries for alleged copyright infringements by third parties (even if the Internet intermediaries are not liable per se). This chapter will first try to highlight what are the current patterns dictated by the case law of the Court of Justice of the European Union (CJEU) regarding the role of Internet intermediaries in the enforcement of intellectual property rights and then attempt to assess whether these patterns correspond to the legislative motives and purposes behind the respective EU legislation.