Centre for Intellectual Property and Information Law (CIPIL) Podcast

The Centre for Intellectual Property and Information Law (CIPIL) Annual Spring Conference 2018 was held on 10 May 2018, on the subject of 'Intermediary Liability and Responsibility'.

Lorna Woods (University of Essex).

The creation of open and responsible digital markets is a major policy priority across the globe, linking critically to both economic dynamism and to protecting core societal values in a challenging socio-technological environment. Amongst the most vexed and controversial aspects of this is the multi-faceted issue of ‘intermediary’ liability and responsibility. How active can an information society service be whilst still falling within an intermediary shield (safe harbour)? What potential liability and ongoing responsibilities (or duties of care) should such shielded intermediaries have for potential illegalities on their service? To what extent should the answer to this question depend on the type of intermediary (e.g. host vs conduit) and/or on the type of potential illegality? These are among the questions that are confronting us within this space.

In 2016 the European Commission announced that it would seek to complement the approach taken by the e-Commerce Directive (2000/31/EC), developed in the early days of the web, with a new “sectorial, problem-drive approach to regulation” (page 9). This led to the adoption, as a central part of the EU’s Digital Single Market (DSM) strategy, of proposals to regulate certain online platforms in two key areas: those of copyright and child protection and hate speech. The copyright proposal advocates the application of filtering/blocking mechanisms as routine and mandatory measures. The child protection and hate speech proposal places emphasis on platforms proactively adopting a range of measures to manage content, including through their terms and conditions, age verification and reporting/flagging systems. The legislative progress of both proposals is now well advanced. Meanwhile, the soon to be in force General Data Protection Regulation (2016/679) addresses the relationship between the intermediary shields and the responsibilities of both controllers and processors of personal data to safeguard personal information – an aspect of law that has received greater attention following the ground-breaking C-131/12 Google Spain judgment of the Court of Justice on the ‘right to be forgotten’. Finally, thinking in this area has been affected by the case law of the European Court of Human Rights, notably the Grand Chamber judgment of Delfi (2015), which specifically explored the responsibilities of online news platforms for defamatory and hate speech material that interfered with an individual’s right to a private life, as well as the follow-up judgments of MTE v Hungary (2016) and Pihl v Sweden (2017).

This year’s one-day conference will provide a unique opportunity to explore where we are in this broad and important area, as well as where we might be going in the future. The morning session will take stock of current law and debate on intermediary liability and responsibility in each of the substantive areas falling under the DSM, whilst also raising critical overarching questions. The afternoon sessions will then focus on specific cross-cutting themes: (i) what should be the reach of notice-based remedies in this area and, in particular, when (if at all) should these extend to filtering/blocking; (ii) should some intermediaries have proactive obligations to respond to illegality; and (iii) what new thinking might be fruitful here, especially for the UK, given the likelihood of an imminent Brexit.

For more information, see the CIPIL website: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-spring-conference

The Centre for Intellectual Property and Information Law (CIPIL) Annual Spring Conference 2018 was held on 10 May 2018, on the subject of 'Intermediary Liability and Responsibility'.

This recording features Frederik Borgesius (Free University Brussels).

The creation of open and responsible digital markets is a major policy priority across the globe, linking critically to both economic dynamism and to protecting core societal values in a challenging socio-technological environment. Amongst the most vexed and controversial aspects of this is the multi-faceted issue of ‘intermediary’ liability and responsibility. How active can an information society service be whilst still falling within an intermediary shield (safe harbour)? What potential liability and ongoing responsibilities (or duties of care) should such shielded intermediaries have for potential illegalities on their service? To what extent should the answer to this question depend on the type of intermediary (e.g. host vs conduit) and/or on the type of potential illegality? These are among the questions that are confronting us within this space.

In 2016 the European Commission announced that it would seek to complement the approach taken by the e-Commerce Directive (2000/31/EC), developed in the early days of the web, with a new “sectorial, problem-drive approach to regulation” (page 9). This led to the adoption, as a central part of the EU’s Digital Single Market (DSM) strategy, of proposals to regulate certain online platforms in two key areas: those of copyright and child protection and hate speech. The copyright proposal advocates the application of filtering/blocking mechanisms as routine and mandatory measures. The child protection and hate speech proposal places emphasis on platforms proactively adopting a range of measures to manage content, including through their terms and conditions, age verification and reporting/flagging systems. The legislative progress of both proposals is now well advanced. Meanwhile, the soon to be in force General Data Protection Regulation (2016/679) addresses the relationship between the intermediary shields and the responsibilities of both controllers and processors of personal data to safeguard personal information – an aspect of law that has received greater attention following the ground-breaking C-131/12 Google Spain judgment of the Court of Justice on the ‘right to be forgotten’. Finally, thinking in this area has been affected by the case law of the European Court of Human Rights, notably the Grand Chamber judgment of Delfi (2015), which specifically explored the responsibilities of online news platforms for defamatory and hate speech material that interfered with an individual’s right to a private life, as well as the follow-up judgments of MTE v Hungary (2016) and Pihl v Sweden (2017).

This year’s one-day conference will provide a unique opportunity to explore where we are in this broad and important area, as well as where we might be going in the future. The morning session will take stock of current law and debate on intermediary liability and responsibility in each of the substantive areas falling under the DSM, whilst also raising critical overarching questions. The afternoon sessions will then focus on specific cross-cutting themes: (i) what should be the reach of notice-based remedies in this area and, in particular, when (if at all) should these extend to filtering/blocking; (ii) should some intermediaries have proactive obligations to respond to illegality; and (iii) what new thinking might be fruitful here, especially for the UK, given the likelihood of an imminent Brexit.

For more information, see the CIPIL website: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-spring-conference

The Centre for Intellectual Property and Information Law (CIPIL) Annual Spring Conference 2018 was held on 10 May 2018, on the subject of 'Intermediary Liability and Responsibility'.

This recording features Martin Senftleben (Free University Amsterdam (VU)).

The creation of open and responsible digital markets is a major policy priority across the globe, linking critically to both economic dynamism and to protecting core societal values in a challenging socio-technological environment. Amongst the most vexed and controversial aspects of this is the multi-faceted issue of ‘intermediary’ liability and responsibility. How active can an information society service be whilst still falling within an intermediary shield (safe harbour)? What potential liability and ongoing responsibilities (or duties of care) should such shielded intermediaries have for potential illegalities on their service? To what extent should the answer to this question depend on the type of intermediary (e.g. host vs conduit) and/or on the type of potential illegality? These are among the questions that are confronting us within this space.

In 2016 the European Commission announced that it would seek to complement the approach taken by the e-Commerce Directive (2000/31/EC), developed in the early days of the web, with a new “sectorial, problem-drive approach to regulation” (page 9). This led to the adoption, as a central part of the EU’s Digital Single Market (DSM) strategy, of proposals to regulate certain online platforms in two key areas: those of copyright and child protection and hate speech. The copyright proposal advocates the application of filtering/blocking mechanisms as routine and mandatory measures. The child protection and hate speech proposal places emphasis on platforms proactively adopting a range of measures to manage content, including through their terms and conditions, age verification and reporting/flagging systems. The legislative progress of both proposals is now well advanced. Meanwhile, the soon to be in force General Data Protection Regulation (2016/679) addresses the relationship between the intermediary shields and the responsibilities of both controllers and processors of personal data to safeguard personal information – an aspect of law that has received greater attention following the ground-breaking C-131/12 Google Spain judgment of the Court of Justice on the ‘right to be forgotten’. Finally, thinking in this area has been affected by the case law of the European Court of Human Rights, notably the Grand Chamber judgment of Delfi (2015), which specifically explored the responsibilities of online news platforms for defamatory and hate speech material that interfered with an individual’s right to a private life, as well as the follow-up judgments of MTE v Hungary (2016) and Pihl v Sweden (2017).

This year’s one-day conference will provide a unique opportunity to explore where we are in this broad and important area, as well as where we might be going in the future. The morning session will take stock of current law and debate on intermediary liability and responsibility in each of the substantive areas falling under the DSM, whilst also raising critical overarching questions. The afternoon sessions will then focus on specific cross-cutting themes: (i) what should be the reach of notice-based remedies in this area and, in particular, when (if at all) should these extend to filtering/blocking; (ii) should some intermediaries have proactive obligations to respond to illegality; and (iii) what new thinking might be fruitful here, especially for the UK, given the likelihood of an imminent Brexit.

For more information, see the CIPIL website: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-spring-conference

Bernt Hugenholtz, Professor of Copyright Law, and Co-Director of the Institute for Information Law (IViR) of the University of Amsterdam, spoke on the topic of "'Orthogonalising' Copyright: Reclaiming lost culture and getting authors paid" at a seminar on 16 November 2017.

Bernt Hugenholtz is Professor of Copyright Law, and Co-Director of the Institute for Information Law (IViR) of the University of Amsterdam. He is also a professor at the University of Bergen (Norway), and lecturer at the Munich Intellectual Property Law Center (Munich). Prof. Hugenholtz has acted as an advisor to the World Intellectual Property Organization (WIPO), the European Commission, the European Parliament and the Netherlands government. He is co-author and editor, with Prof. Thomas Dreier (TU Karlsruhe), of Concise European Copyright Law (2nd. ed. 2016), and co-author, with Professor Paul Goldstein (Stanford University), of International Copyright Law (3rd ed. 2013). Prof. Hugenholtz is one of the founders of the Wittem Group that drafted the European Copyright Code, and a co-founder and member of the European Copyright Society.

For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Dr Judith Townend, lecturer in media and information law at the University of Sussex, spoke on the topic of 'Of data and judges: the conundrum of public access to information from the court' at a seminar on 2 March 2018.

Dr Judith Townend is lecturer in media and information law at the University of Sussex, where she specialises in research relating to freedom of expression and access to information. She has been preoccupied by courts data since 2011 and has written for a wide range of media and academic publications. Prior to joining Sussex in 2016, she was lecturer and director of the Information Law and Policy Centre at the Institute of Advanced Legal Studies. Her route into socio-legal research was relatively unorthodox, having studied Archaeology & Anthropology at the University of Cambridge as an undergraduate before training and working in journalism at the beginning of her career. Her doctoral studies at City University's Centre for Law, Justice and Journalism focused on the so-called 'chilling effect' phenomenon in the context of defamation and privacy law.

For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Patricia Collis, Trade Mark Attorney from Bird & Bird, spoke on the topic of 'The challenges for trade mark practitioners in the age of Brexit' at a seminar on 14 February 2018.

Patricia is a Senior Associate at the international law firm Bird & Bird. She is based in their London office where she works in the brand management team. In addition to helping clients create, exploit and maintain trade mark and design rights across the globe, she advises on contentious matters and has experience of proceedings at the UK Intellectual Property Office, the EU Intellectual Property Office, the High Court and the General Court. She also advises on issues relating to domain names, company names and copyright. Patricia holds an MA and an LLM from the University of Cambridge, and is qualified as a European Trade Mark & Design Attorney, UK Chartered Trade Mark Attorney and Registered Trade Mark Attorney in Ireland. Patricia is co-author of The European Union Trade Mark: A Practical Guide (2016, Globe Law and Business), co-editor of The CITMA & CIPA Community Designs Handbook (Sweet & Maxwell) and sits on the Designs Committee of the European Communities Trade Mark Association (ECTA). She has also been involved in the Brexit Working Group on Designs for the Chartered Institute of Trade Mark Attorney (CITMA).

For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Hugh Tomlinson QC, Matrix Chambers, spoke on the topic of 'Sex, Lies and Unfairly Processed Data: The Information Torts in Practice' at a seminar on 1 February 2018.

Hugh Tomlinson QC is one of the leading practitioners in media and information law. He has appeared in many of the most important and innovative cases in recent years including Clift v Slough BC, Mosley v Google, PJS v News Group Newspapers and Vidal-Hall v Google. He is currently representing five and half million iPhone users in the Lloyd v Google Inc, the first "opt out" data protection action to be brought in the English Courts. He has a wide-ranging practice in both private and public law. His practice also includes advisory work and litigation in the freedom of information field. He is joint author of the leading practitioner texts on the law of human rights and on civil actions against the police and has, most recently edited Online Publication Claims: A Practical Guide.

For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Martin J Adelman, Theodore and James Pedas Family Professor IP & Technology Law - George Washington University Law School, spoke on the topic of 'The United States law of patent eligibility regarding products of nature and natural laws from nitrogen fixing bacteria to genes' at a seminar on 23 November 2017.

Professor Adelman is currently the Theodore and James Pedas Family Professor of Intellectual Property and Technology Law and Co-Director of the Dean Dinwoodey Center for Intellectual Property Studies at George Washington University Law School. Before a career in academia he practiced for several years as a patent attorney in the Detroit area. The current focus of his teaching and scholarship is in the field of patent law. He has written many law review articles on patent law and patent-antitrust law. From 1977 to 1988 he was one of the co-authors and from 1988-2013 the sole author of the continuously updated nine volume treatise on patent law entitled Patent Law Perspectives. He is a co-author of Cases and Materials on Patent Law and Global Issues in Patent Law. He has testified as an expert in patent law in about 190 patent infringement cases and has lectured at conferences around the world. In addition to his regular three patent law courses at GW, he teaches patent law on a regular basis at Munich Intellectual Property Law Center, the Hebrew University of Jerusalem, Bar-Ilan University and the University of Washington.

For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Rebecca Giblin, Associate Professor of Law, Monash University Australia, spoke on the topic of "'Orthogonalising' Copyright: Reclaiming lost culture and getting authors paid" at a seminar on 16 November 2017.

Dr Rebecca Giblin is an ARC Future Fellow and Associate Professor within Monash University's Law Faculty. During 2011 she was the Kernochan Visiting International Intellectual Property Scholar at Columbia Law School in New York, and in 2013 a Senior Visiting Scholar in residence at Berkeley. Dr Giblin has published widely in the areas of copyright, access to knowledge (A2K) and regulation of emerging technologies, including Code Wars (Edward Elgar, 2011) and What if we could reimagine copyright? (ANU Press, 2017). In addition to her ARC Future Fellowship project (introduced in this seminar, see also authorsinterest.org), Giblin is also the lead Chief Investigator of an ARC Linkage Project, working with legal, social and data science researchers, together with library partners in five jurisdictions, to understand the legal and social impacts of library e-lending. She tweets @rgibli.

For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Susanna HS Leong, Professor of Law at the NUS Business School, National University of Singapore, spoke on the topic of 'Internet Intermediaries and Copyright Infringement – Who makes the copy?' at a seminar on 9 November 2017.

Susanna HS Leong is a Professor of Law at the NUS Business School, National University of Singapore and is an Advocate & Solicitor of the Supreme Court of Singapore. Susanna received her LL.B (Hons) from National University of Singapore and her LL.M (with Merit) from University College London, University of London. She teaches business related law courses such as contract, sale of goods and intellectual property to undergraduate and graduate business students in English and Chinese. Her research interests are in intellectual property and technology-related laws. She has published in several international and local academic journals. She is also the author of “Intellectual Property Law of Singapore”, Academy Publishing, Singapore.

Susanna was the Vice-Dean, Graduate Studies, NUS Business School (January 2008 to December 2016). She is a Senior Fellow at the Intellectual Property Academy of Singapore. She is a member of WIPO Arbitration and Mediation Centre’s Domain Name Panel, a member of The Regional Centre for Arbitration, Kuala Lumpur (RCAKL) Panel and a member of Asian Domain Name Dispute Resolution Centre (Hong Kong). She is also a member of the Singapore Copyright Tribunal.

For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk