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Dissertation
Immaterialgüter- und Wettbewerbsrecht

Hosting ISPs’ Responsibility for Copyright Infringement on the Internet — A Comparison between the US, EU and China

Hosting ISPs, play the role with dual characters - facilitating the transmission of both legal and illegal information. Copyright owners claim that hosting ISPs should be responsible for any infringement committed by their subscribers. This research aims at contributing to draw a proper boundary for the copyright responsibilities of hosting ISPs.

Last Update: 16.08.16

The high efficiency of Internet transmission not only makes the knowledge and information more conveniently accessible, but also facilitates the overwhelming piracy on the Internet. Hosting ISPs, which host the information at the direction of its subscribers, also play the aforesaid role with dual characters - facilitating the transmission of both legal and illegal information. Because of the anonymization on the Internet, it is nearly impossible for copyright owners to request subscribers who post infringing materials to undertake liability. Therefore, copyright owners turn towards hosting ISPs, who act as intermediaries and facilitators of distributing infringing materials, and claim that hosting ISPs should be responsible for infringement committed by their subscribers.

This research aims at contributing to draw a proper boundary for the copyright responsibilities of hosting ISPs. It first examines the rules on hosting ISPs’ copyright responsibilities in the US, EU and China. Further, the boundary of responsibilities will affect the interests of copyright owners, hosting ISPs and Internet users. Therefore, based on the examination done about hosting ISPs’ copyright responsibilities in the US, EU and China, this research further evaluates whether the current rules on responsibilities properly reconcile the interests between copyright owners, hosting ISPs and Internet users, and if not, how the current rules on responsibilities should be readjusted so as to achieve a balance between these three stakeholders.

So far, hosting ISPs’ copyright responsibility can be categorized into three levels which are copyright liability, mandatory obligations and self-regulatory duties. Therefore, to fulfill the main research aims, the research consists of three parts. First, it analyzes the liability rules and relevant case law in the US, EU and China, and then summarizes the factors that have been taken into account by the courts. Then, it discusses how these factors should be interpreted so as to avoid unreasonably stifling e-commerce and freedom of speech. Second, it explores the mandatory obligations undertaken by hosting ISPs in the US, EU and China, including notice-and-takedown procedures and identities disclosure mechanisms, and then suggests how to craft these mandatory obligations so as to avoid conflicting with Internet users’ human rights. Third, it looks into the self-regulation between copyright owners and hosting ISPs, and explores how to take advantage of self-regulation to balance the interests between copyright owners, hosting ISPs and Internet users.

Persons

Doctoral Student

Jie Wang

Supervisor

Dr. Kaya Köklü

Doctoral Supervisor

Prof. Dr. Reto M. Hilty

Main Areas of Research

Interessensausgleich