Ecommerce Directive
DATE: NOVEMBER 2010
Executive Summary:
UK Music raises concerns about the broad limitations of liability extended to Internet intermediaries. In practice the provisions are inhibiting the development of a coherent value chain; they are providing additional protection for illegitimate service providers. Reference to the applicability of the limitation of liability is used by service providers to delay licensing discussions and to drive down the price they pay for licensing, even if the activities concerned fall outside the scope of Articles 12 - 14.
Our concerns could be addressed by the Commission offering further clarification of the e-Commerce Directive to create further certainty and to advance the development of a functioning market with legitimate business models which will ultimately benefit consumers and citizens.
The review of the e-Commerce Directive should also provide an opportunity to address the following issues:
- A clear definition of information society services taking into account the technological developments of the digital world as well as the activities of service providers building their activities on the illegitimate use of creative works.
- Clarification that the e-Commerce Directive and the limitation of liability therein does not supersede copyright law.
- Member states could be encouraged to impose sanctions for service providers not complying with the requirements set out in Article 5 (1).
- Beyond their corporate and social responsibility, ISPs should be under a statutory duty to provide information and education concerning the implications of linking to illegitimate sites even if this is not intentional or deliberate.
- We recommend that Article 15 be clarified in order to ensure that filtering and monitoring is possible given current technological capabilities.
- A extension to also include hyperlinkers and location tool providers as provided in Article 21 is unnecessary and would be ill advised given the damage that would inevitably be caused by enabling infringing services to seek to invoke the safe harbour.
- The European Commission should encourage co-operation between ISPs and right holders to further the functioning market by creating legislative incentives for all players to contribute to the legitimate European online market. As it stands the development of the online market is slowed down by service providers who want to provide a legitimate service having to compete with illegitimate and mainly free services. There should not be any protection provided in European law for service providers operating illegal ventures.
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