What Tin Laissez Passer On Notice The Possible Implications Of The Cjeu Pirate Bay Determination Be? A Novel Paper

[Apologies for the cross-posting to those readers who too subscribe to The IPKat, where this postal service was originally published on 22 July 2017]

As reported, on xiv June final the Court of Justice of the European Union (CJEU) issued its much-awaited judgment in Stichting Brein v Ziggo BV in addition to XS4All Internet BV, C-610/15 (the ‘Pirate Bay’ case).

There, the Court developed farther its construction of the correct of communication to the populace inside Article 3(1) of the InfoSoc Directive, in addition to clarified nether what weather condition the operators of an unlicensed online file-sharing platform are liable for copyright infringement.

The CJEU judgment builds upon the before Opinion of Advocate General (AG) Szpunar inwards the same case [reported here], all the same goes beyond it. This is notably in addition to then alongside regard to the consideration of the subjective chemical constituent (knowledge) of the operators of an online platform making available copyright content. Unlike AG Szpunar, the Court did non shout out liability entirely to situations inwards which the operators of an online platform convey acquired actual knowledge of third-party infringements, simply too included situations of constructive knowledge (‘could non survive unaware’) and, possibly, fifty-fifty more.

Overall, the CJEU conclusion is non express to egregious scenarios similar the i of The Pirate Bay: the Court’s findings are applicable to dissimilar types of online platforms, every bit good every bit operators alongside dissimilar degrees of noesis of infringements committed past times users of their services.

In my stance the judgment is expected to convey substantial implications for hereafter cases (including at the flat of private Member States), in addition to overall prompts a broader reflection on issues such every bit the interplay betwixt main in addition to secondary liability for copyright infringement, applicability of the security harbour authorities inside the E-Commerce Directive, every bit good every bit the electrical flow European Union copyright reform debate, notably the in addition to then called value gap proposal inside Article thirteen of the draft Directive on Copyright inwards the Digital Single Market.

Further to a asking of the International Federation of the Phonographic Industry (IFPI), I prepared a newspaper that would explore the possible implications of the judgment. The newspaper is going to survive published every bit an article inwards the European Intellectual Property Review later this year. In the meantime, you lot tin respect a pre-edited version here.