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Immaterialgüter- und Wettbewerbsrecht

Hosting ISP’s role When Enforcing Copyright on the Internet

This thesis will compare the different legal theories of secondary liability which form the base to solve the hosting ISP’s liability in different countries, especially the gap between common law and continental law shall be more attentive. Besides, how to avoid improperly invading other fundamental rights, such as free speech and privacy, shall be studied so as to figure out a balance when enforcing copyright over the internet.

Last Update: 29.10.13

Because a hosting ISP just operates a platform for its user to upload contents, which can always been seen as being neutral and technical, its liability for the infringing contents uploaded by its users is generally solved under the frame of secondary liability rather than direct liability. Along with the forwarding of law, different rules about secondary liability have been developed in different countries, including contributory infringement, vicarious liability, authorizing infringement in common law and joint tort, disturber’s liability (Unterlassung) in continental law. When it comes to the liability of hosting ISPs, the problem become more complicated, because in order to promote the E-commerce over the internet, a regulation so-called “safe harbor” provision which limits the hosting ISPs’ liability under certain circumstances has been widely adopted over the world. The research will compare the legal theories of secondary liability and the cases about hosting ISP’s liability in different counties, and try to figure out the relationship between liability rules and liability-exemption rules, summarize the common ground and differences between different jurisdictions and generalize developing orientation from judicial perspective.

Besides formal regulation, nowadays, self-governance also has become more and more important in enforcing copyright on the Internet. This thesis will analyze several typical self-governance measures, and try to clarify the relationship between formal regulation and self-governance so as to ensure the efficiency of these two measures when preventing copyright infringement in the hosting ISPs’ websites.

Since the internet has become an essential part of our life, the enforcement of copyright over the internet cannot avoid interacting with the protection of other fundamental rights, such as free speech and privacy. Generally, the above-mentioned rights may suffer from a too strict protection against piracy. This thesis will try to figure out a balanced way to coordinate these conflicting rights by setting a proper role for hosting ISPs.

To sum up, this research will design a statutory framework which ensures the protection of both copyright and other fundamental rights while offering more freedom for hosting ISPs to run their legal business and also set a guideline for courts to resolve such tension.

Persons

Doctoral Student

Jie Wang

Supervisor

Dr. Kaya Köklü

Doctoral Supervisor

Prof. Dr. Reto M. Hilty

Main Areas of Research

Funktionen, Zielsetzungen, Werte und Wertungskriterien