More Liability For Internet Intermediaries Could Raise Information Control, Panellists Say 11/07/2014 by MaÃ«li Astruc for Intellectual Property Watch Leave a Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)At the recent University of Geneva summer course on internet law, one panel addressed challenges and strategies for internet intermediaries facing an increased burden of intellectual property rights protection online. Internet intermediaries (IIMs), such as search engines or platforms hosting content published by others (blogs, social media, video websites), are facing continued pressure to be liable for that content, particularly if it involves counterfeit items or copyright infringement materials. The Internet Law Summer School of the University of Geneva took place from 16-27 June. A panel held on 26 June addressed the subject under the title, “Liability of Internet Intermediaries: risk management strategies and best practices.” Also in the packed audience were participants in the World Intellectual Property Organization summer academy. Speakers requested that their names not be used in this story. The panel included representatives of internet intermediaries and an international organisation, and was chaired by Intellectual Property Watch Editor-in-Chief William New. The event was organised by University of Geneva law Prof. Jacques de Werra. IIM liability is an area where an international action could be justified in order to propose solutions, one of the panellists said. The WIPO Standing Committee on Copyright and Related Rights (SCCR) started to address the issue in 2000, followed by the WIPO Committee on Trademarks, Industrial Designs and Geographical Indications (SCT) in 2012. However, discussions ceased after a committee member argued that it was not the right time to address the issue in an international forum, a request which faced no objection, the panellist added. There are currently no proposals in the WIPO SCCR or SCT on the role and responsibility of IIMs, he said. WIPO may get credit for coining the phrase “internet intermediaries,” said the speaker, expanding on the concept of internet service providers. In addition, it is becoming customary to refer to the “role and responsibility” of IIMs, rather than referring to “liability,” he said. Several national and regional laws address this liability, such as the United States (US) Digital Millennium Copyright Act (DMCA) and the European Union E-Commerce Directive 2000/31/EC (IPW, WIPO, 9 May 2014). But those laws were developed before the rise of the information society, a panellist said, and were not built with this model in mind. But the directives’ relevance is even more apparent now that we live in the information society they perhaps anticipated, in which we have all become media, as we are not only consumers but also producers of information, thanks to tools developed by IIMs, he said. [clarified] People are free to publish information of all kinds, and have primary responsibility for this content. If IIMs had to control all content published on their platforms, this freedom would be undermined as IIMs would check information before publishing it, he added. Considering the huge amount of content published online, several panellists said it is impossible to manually review everything. Despite this, intermediaries have taken down a lot of content, notably with the “notice-and-takedown” method. In the US, this procedure consists of a right holder swearing under penalty of perjury that he has rights on the content, and asking the intermediary to remove it, one of the panellists explained. Meanwhile, the person who published the content can also swear that he has the right to publish it, leaving it to a judge decide, the panellist said. In the EU, this second part doesn’t exist, he said, so IIMs have to verify for themselves the validity of the request, and there are cases where they may remove content that was not copyright infringing. In such cases, more legitimate authorities than the private company should be asked to be the ultimate arbiter of what is legal and what should be removed, the panellist said. The filter technology, which conducts automatic research and filtering of content, still suffers from insufficiencies, a panellist said. That’s because the technology cannot be 100 percent certain in some cases that the content in question is copyright infringing, he said. The speaker also noted that what is IP-protected today can be in the public domain tomorrow. Other difficulties he raised were the identification of content for which entities obtained a licence or were granted exceptions and limitations, and how to handle those filters over time. So there is the risk that some content is filtered out when it should not be. Moreover, such a technical and economic burden on IIMs could bar new companies from entering the market because they are not able to filter adequately, a panellist said. Another concern is not only takedown of content, but “stay down,” meaning monitoring to ensure the content does not reappear. Panellists said a good alternative is content management tools handled directly by IP rights owners. Most of the time, rights owners have to subscribe to a tool that identifies content or items potentially infringing their rights, and decide for themselves if the content should be deleted or not. Some tools also propose alternatives to deletion, such as monetising with ads or tracking the file. Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related MaÃ«li Astruc may be reached at firstname.lastname@example.org."More Liability For Internet Intermediaries Could Raise Information Control, Panellists Say" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.