PhD student: Mr J. Wang

Promotor: Prof A.W.J. Kamperman Sanders

Duration: 1/9/2011

PhD defence: Maastricht, 12/10/2016

Abstract:

1) The state of art The issue of ISPs liability has led to fierce argument among academics. The academics who affirm ISPs should not be subject to liability mainly argue as follows: 1) the software or services they provide for their users are dual-use (for both of infringing use and noninfringing use); 2) its impossible for them to monitor whether their users commit a copyright infringement by considering the huge number of their users and the need of ensuring the efficiency of Internet; 3) exerting too heavy liability on them will give copyright owners the power to control the design and development of technology, and would eventually hamper progress of technologies. Some scholars have done research on how to ensure copyright protection without restricting innovation. Some scholars even argue that Copyright law is important, but at some point copyright incentives must take a backseat to other societal interests, including an interest in promoting the development of new technologies and an interest in experimenting with new business opportunities and market structures. On the other side, some scholars believe that the ISPs should take responsibility for copyright infringement committed by their users. Courts also have reached different results about this issue. For instance, a French court, considering host service providers as editors, applied the so-called cascading liability theory, obliging host service providers to monitor content, while a Dutch court denied a claim against several host service providers, on the ground that they do no more than give the opportunity of communication to the public, and that, in principle, they can exert no influence over, nor even have knowledge of, what those having access to the Internet through them, will supply. With the development of filtering technologies, some courts have started to consider whether ISPs have installed effective filtering measures to reduce infringement as a standard for judging whether ISPs can be exempted from liability. In order to prevent the copyright infringement on the Internet, some nations provided a series of new regulations, such as three strikes provision and disclosure of information provision. These provisions arouse the scholars concern about eroding the publics privacy and expression freedom. 2) the value of research How to enforce copyright on the Internet is a controversial issue worldwide, which is not only relevant to protect the copyright owners interests, but also affects the development of information technologies and individuals human rights, such as freedom of expression, privacy and access to knowledge. This research will study this issue comprehensively from points of view, and then suggest a comprehensive solution for this issue, including building a suitable statutory framework, making a judicial guideline for courts and combining the two protective devices---- formal regulation and self-governance, so as to harmonize the solutions among the aforesaid three different interests. 3) main coverage and standpoints I. Historical exploration on interaction between copyright protection and advance of technologies disseminating works. This part will point out that the birth of copyright law resulted from the advent of printing technologies, and the progress of communication technologies always promote the modification of copyright law. On the other hand, especially in information age, the design of copyright law also has effects on the development of communication technologies. II. Comparing legislation on the enforcement of copyright on the Internet from different countries. This part will compare the relevant provisions in DCMA (U.S.A.), Directive 2000/31/EC (EU), Copyright Legislation Amendment Act 2004 (Australia), Copyright (New Technologies) Amendment Act 2008 (New Zealand), Regulations for the Protection of Information Network Transmission Right (China), etc. and then summarize common ground and differences among these statutes. III. Analyzing and comparing of cases on the enforcement of copyright on the Internet. By analyzing and comparing the judicial decisions made by different courts in different countries during different periods, this part will find out the common ground and differences among these judicial decisions, and analyze why do these differences exist. In addition, based upon judicial decisions made in different periods, this part will generalize judicial orientation happened in the worldwide. IV. Analyzing and comparing of the theories of indirect infringement in common law and joint tort in continental law. The theories of indirect infringement and joint tort both play a vital role in enforcing copyright law on the Internet, but indirect infringement roots in common law while joint tort origins from continental law, which will unavoidably lead to some differences. This part will identify the common ground and differences between these two theories, and try to find out the effects on judicial decisions and legislations resulting from these differences. V. How to deal with the conflicts between copyright and other rights. Copyright, as a constitutional right (in the USA) and human right, certainly should be protected from infringement. On the other side, some other rights, such as privacy, access to knowledge, also play an important role in human beings daily life. With the development of information technologies, the conflicts between copyright and other rights (mainly privacy and access to knowledge) have become more and more fierce. Based on studying the achievements made by other scholars, this part will work at finding out a reasonable way to coordinate these conflicts, and point out the protection of copyright should not be at the price of sacrificing the publics privacy rights and need of free access to knowledge. VI. Besides formal regulation, nowadays, self-governance also has become more and more important in enforcing copyright on the Internet. This part will clarify the relationship between formal regulation and self-governance so as to ensure the efficiency of these two measures when preventing copyright infringement on the Internet. VII. Based on aforesaid research, this part will design a statutory framework which ensures the protection of copyright while avoids to hamper the advance of information technologies and erode public interests, e.g. privacy, access to knowledge, expression freedom and other rights illuminated in Charter of Fundamental Rights of the European Union. Besides, this part will set a guideline for courts to make a reasonable judgment when facing with the challenges to resolve the tension between copyright protection and the advance of information technologies.