The Protection Of Intellectual Property Rights vs. The Rights Of Internet Service Providers A Delicate Balancing Act


Over the last couple of years, it has become clear that Trademark and Copyright owners have a tense relationship with the Internet Service Providers.

The Internet has proven to be a vast platform, accessible worldwide, making it easier to violate intellectual property rights on a large scale. Since it is often difficult to seek action against the original infringer, Intellectual Property Right Owners frequently try to hold the Internet Service Providers liable for hosting infringed content and for facilitating the illegal distribution of protected works. By doing so, they repeatedly ask the courts for extensive measures, which can contravene fundamental rights such as privacy or freedom of expression. Hence, the courts often have to perform a balancing act between the protection of intellectual property rights and freedom of information. The recent case law of the European Court of Justice has clarified the extent of the liability of the Internet Service Providers when it comes to Intellectual Property violations and has set out basic principles regarding this matter.

The Case ebay / L'Oréal

This judgment, rendered by the European Court of Justice on July 12th 2011, has tackled several issues concerning trademark infringements. This case has its origin in a dispute between L'Oréal, the famous manufacturer of cosmetic products, and eBay, the online marketplace. L'Oréal has sought action against eBay, arguing that the latter has committed various trademark infringements. One in particular concerned eBay's liability for condoning trademark violations committed by the users of the online marketplace. According to l'Oréal, eBay should be held liable, given that she is to be considered "involved" in the aforementioned infringements and that she does not take appropriate actions in order to end the illegal practices. Ebay on the other hand maintained that she could rely on the exemption as foreseen in article 14 of the E-commerce Directive (2000/31). The Court had to interpret the extent of the exemption of liability provided by article 14. In its judgment, the Court stated that an Internet service provider can rely on the safe harbor provision, when it can be established that the operator has (i) no actual knowledge of illegal activities or information, (ii) it is not aware of facts or circumstances from which the illegal activities or information is apparent, and (iii) having obtained such knowledge or awareness, it has acted expeditiously to...

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