Jougleux, Philippe

This chapter discusses the importance of copyright law enforcement as a prerequisite for the emergence of a digital single market. It firstly analyzes the reasons for the current crisis in copyright law enforcement and focuses on the role of Internet intermediaries in this context. The question is examined of whether the Internet intermediary’s liability should have been abandoned 15 years ago with the enactment of the E-commerce Directive, whereby the intermediaries’ safe harbor was established. However, this chapter shows that the law itself, together with an audacious jurisprudential interpretation, leads in practice to the application of a fault-based approach to Internet intermediaries’ liability. As this evolution is obviously not sufficient to resolve the issue of online enforcement of copyright law, this analysis is supplemented by the emerging topic of gag orders. This method, combined with the trends in case law related to pan-European judicial orders, despite being incomplete, nowadays offers the most promising solution towards effective copyright law enforcement.

The present paper discusses recent evolutions in jurisprudence on online copyright law enforcement in Europe, emphasizing consequences for freedom of expression. It debates whether free speech is menaced by application of this case law. First, reference is made to the relevant case law at the European level. Secondly, the author refers to injunctions against intermediaries and concludes that the danger to freedom of expression has been identified and taken in account by the court. Finally, the author refers to the parallel jurisprudential evolution of copyright law related to hyperlinks and demonstrates that here the issue of freedom of expression has not been taken enough into consideration, something that may have disastrous consequences.

This chapter discusses the importance of copyright law enforcement as a prerequisite for the emergence of a digital single market. It firstly analyzes the reasons for the current crisis in copyright law enforcement and focuses on the role of Internet intermediaries in this context. The question is examined of whether the Internet intermediary’s liability should have been abandoned 15 years ago with the enactment of the E-commerce Directive, whereby the intermediaries’ safe harbor was established. However, this chapter shows that the law itself, together with an audacious jurisprudential interpretation, leads in practice to the application of a fault-based approach to Internet intermediaries’ liability. As this evolution is obviously not sufficient to resolve the issue of online enforcement of copyright law, this analysis is supplemented by the emerging topic of gag orders. This method, combined with the trends in case law related to pan-European judicial orders, despite being incomplete, nowadays offers the most promising solution towards effective copyright law enforcement.

This book provides an overview of recent and future legal developments concerning the digital era, to examine the extent to which law has or will further evolve in order to adapt to its new digitalized context. More specifically it focuses on some of the most important legal issues found in areas directly connected with the Internet, such as intellectual property, data protection, consumer law, criminal law and cybercrime, media law and, lastly, the enforcement and application of law. By adopting this horizontal approach, it highlights-on the basis of analysis and commentary of recent and future EU legislation as well as of the latest CJEU and ECtHR case law-the numerous challenges faced by law in this new digital era. This book is of great interest to academics, students, researchers, practitioners and policymakers specializing in Internet law, data protection, intellectual property, consumer law, media law and cybercrime as well as to judges dealing with the application and enforcement of Internet law in practice.