Chile Leads The Way On Intermediary Liability Protections
from the european-commission-please-take-note dept
As Techdirt reported, the European Commission is conducting a major consultation on the "procedures for notifying and acting on illegal content hosted by online intermediaries" that could radically affect the liability of online service providers in the European Union. Other parts of the world are doubtless examining this area too, and one at least -- Chile -- has already come up with a novel approach.
This emerged as part of a major overhaul of its copyright laws that was required as the result of a bilateral trade agreement with the US. The legislation is wide ranging, including copyright enforcement (sadly, the usual over-the-top stuff, like $100,000 fines for repeat offenders, and allowing retail value to be used for compensation calculations), but a rather enlightened set of copyright exceptions. Here's how a 2010 WIPO article on Chile's new law broke them down:
Acts of reproduction, adaptation, distribution or public communication of works will be considered lawful if done for the benefit of disabled persons where normal access to such works is not available.
Chile's comprehensive regulations governing the liability of ISPs, the first in Latin America according to the WIPO magazine, have now been analyzed in detail by the Center for Democracy & Technology, which provides the following summary:
Under certain conditions, non-profit libraries and archives may reproduce works that are no longer obtainable in the market. These institutions may also make electronic copies of works from their collections available for study at user terminals.
Reverse engineering activities are allowed on software, but only for compatibility purposes and research and development – or to test, investigate or correct the operation and safety of software.
Satire or parody is considered lawful if it makes an artistic contribution that sets it apart from the work or performance to which it refers.
It is lawful to reproduce or communicate a work to the public in order to comply with judicial, administrative and legislative proceedings.
A cornerstone of the US legislation is a private notice-and-takedown system, under which the liability protections of service providers are contingent on those providers complying with rightsholdersʼ formal notices to take down allegedly infringing material. Chileʼs law does not include such a private notice-and-takedown system; instead, a court order is required to compel blocking or removal of infringing content. Due to concern over the protection of Internet users' constitutional rights, the Chilean National Congress rejected several amendments that would have introduced a non-judicial takedown procedure. The law thus strikes a different balance than the DMCA -- one that is arguably more favorable to Internet free expression and innovation -- with implications for rightsholders, intermediaries, and Internet users.
The rest of the short CDT report (pdf) explores in detail the new Chilean law. It's well worth reading in order to appreciate the way the Chilean lawmakers took pains to safeguard free expression and to provide plenty of scope for innovation. Here's one important point that it highlights:
as under the DMCA and the ECD, the liability protection afforded by Chileʼs law is not contingent on service providers monitoring the data they transmit, store, or refer to, nor are service providers required to actively seek out facts or circumstances indicating illegal activities
Let's hope the European Commission takes note of this approach when it draws up its own proposals in the wake of the consultation, and that it requires a similarly active role of the courts in blocking or removing illegal content hosted by online intermediaries.