European Commission Consultation 2014 Hosting

You host a website (for example a blog or a forum)

By hosting and storing web content technical intermediaries play an essential role on the Internet. But with regard to this content, especially on questions of copyright violations, their legal responsibility can be called upon. In order to prevent that these technical intermediaries have to police the content of all users that use through their services, it is important to provide them with sufficiently strong judicial protection. a

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To prepare your response, we recommend that you read the following proposals:

2. Legitimacy of referring and linking

The Internet and the Web are what they are first and foremost because of the possibility to make accessible, for instance through a link, any digitally published contents, provided one knows its URL. This possibility is the contemporary equivalent of referencing published contents. Referencing accessible contents through links is an essential condition of the freedom of information and expression. The pretense of some sites that they are entitled to prevent Web users from creating deep links pointing directly on accessible contents are unacceptable attacks against the right to refer and the freedom of expression. It is worrying that some believed they were entitled to limit this right on the basis of possible losses of advertising revenue for sites. Legal cases repeatedly established the indissoluble link between publishing some content and the freedom of others to refer to it.

There is a link between this general freedom of reference and the legal recognition of the non-market sharing of digital works between individuals advocated in the previous section. In the context of such a recognition, creating directories of links to digital files making possible to practice this sharing is a legitimate activity, whether it is conducted by commercial players or not. On the contrary, centralizing digital works on a site remains within the frame of copyright, and is thus submitted to an authorization or a collective license.

One could wonder why it is necessary to state that providing information or tools for a legal activity must also be a legal activity. However, some right holders developed a very surprising theory according to which link or reference directories (such as BitTorrent trackers or servers providing links for P2P file sharing under other protocols) would constitute an exploitation of the works themselves, even though they do not store nor reproduce these works. Obviously, one must take in account the cultural or economic impact of services facilitating file sharing. However, why would the market sphere benefit from references and non-market activities be deprived from the same benefits?

15. No additional involvement of technical intermediaries in the application of copyright

In section VI of the public consultation, the Commission asks whether “the current legal framework [is] clear enough to allow for sufficient involvement of intermediaries (such as Internet service providers, advertising brokers, payment service providers, domain name registrars, etc.) in inhibiting online copyright infringements with a commercial purpose” and “If not, what measures would be useful to foster the cooperation of intermediaries?". The desire to involve and make responsible technical intermediaries, which was also at the heart of SOPA and ACTA, can be seen clearly here.

This reflects the repressive tendency that has characterised the evolution of copyright legislation for years. It will affect freedom of expression online, as well as jeopardising essential guarantees of citizens' rights which require the intervention of a judge and a fair trial. The principles applicable to the liability of technical intermediaries are regulated by Directive 2000/31/EC on electronic commerce, and have been laid out by jurisprudence in several european courts. The revision of the Directive on copyright should not weaken their status.