Internet Intermediaries and the Law Applicable to Intellectual Property Infringements

• Author: Pedro A. De Miguel Asensio
• Position: Dr. iur. (Madrid), LL.M. (Amsterdam), Professor of Private International Law at the Universidad Complutense de Madrid
• Pages: 350-360

2012

Pedro A. De Miguel Asensio

350

3

Internet Intermediaries and the

Law Applicable to Intellectual

Property Infringements

by Pedro A. De Miguel Asensio, Dr. iur. (Madrid), LL.M. (Amsterdam), Professor of

Private International Law at the Universidad Complutense de Madrid

© 2012 Pedro A. De Miguel Asensio

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Recommended citation: Pedr o A. De Miguel Asensio, Internet Intermediari es and the Law Applicable to Intellectual Pr operty

Infringements, 3 (2012) JIPITEC 3, 35 0.

A. Introduction

1

The concept of Internet intermediaries is broad,

comprising providers of many different activities,

facilities and services that enable others to take full

advantage of the Internet and information society

services. Intermediaries provide access to commu-

nication networks, services related to the trans-

mission of information in such networks, hosting

services (including cloud-based services, social net-

working sites, auction sites, blogging sites and other

platforms that enable users to post contents), hy-

perlinks and search engines, and more. To the ex-

tent that the activities, facilities and services provi-

ded by intermediaries may result in infringements

of intellectual property (IP) and may especially sup-

port or facilitate infringements by others, the liabi-

lity of Internet intermediaries, the determination

of under what circumstances they may be held li-

able in connection with the activities of the users

of their services and the possibility to bring claims

against the intermediaries themselves, has become

a crucial issue for the protection of IP on the Inter-

net. In this context the relevant activities enabling

IP infringements may also include the distribution

of tools such as software that may be used to carry

out allegedly infringing activities in particular with

-

tion of technical protection measures.

2

Current developments regarding IP infringement

disputes in the Internet illustrate the importance of

claims against intermediaries.1 Even in situations in

which intermediaries may not be held liable as di-

rect nor secondary infringers they may be required

by a court or authority to terminate or prevent an

Abstract: The coordination between territo-

riality restricted intellectual property rights and the

potential global reach of Internet activities has been

the focus of significant attention in recent years. The

liability of Internet intermediaries offering potentially

global services that may facilitate infringements of

intellectual property rights by others in multiple

countries poses a particular challenge in that regard.

At a substantive law level, significant differences re-

main between jurisdictions regarding secondary li-

ability for intellectual property rights infringements

and safe harbor provisions for Internet intermediar-

ies. The present article discusses the conflict of laws

aspects of the liability of Internet intermediaries in

light of the recent international efforts to adopt soft

law provisions on intellectual property and private in-

ternational law.

Keywords: Intellectual Property, Internet, Intermediaries, Secondary Liability, Safe Harbors, Conflict of Laws.