Liability of Hosting Provider with Regard to Open Libraries

Introduction

Understanding the legal issue of a host provider’s liability in the context of an open library is, by itself, a difficult task. The reason seems to be very simple: in order for a person to be held liable in any jurisdiction worldwide, an action, omission or a forbearance has to be committed (or just to take place) that may be properly characterized as an “infringement” by the applicable law. Such “infringement” in the digital world of an open library is primarily connected to the laws of Intellectual Property and especially those governing copyright and its related rights. While the law seems to be clear on whether certain actions or omissions constitute a copyright infringement, an intense dialogue has been developed nowadays among academics, institutions, publishers and – most importantly – users, which demonstrates the user communities’ interest (legitimate or not) to acquire free and open access to works protected by copyright and possibly interfere with them in order to create derivative works for non-commercial purposes. It is therefore argued that such derivative works constitute a common cultural good that the law – especially the IP Laws – should also take into account along with the IPR holders’ legitimate interests.

At any rate, the judgement of whether a user’s conduct constitutes a copyright infringement according to the applicable copyright laws is of significant importance in examining the critical issue of a hosting provider’s liability for such infringement. This is because - in general - no information service provider can be held liable for copyright infringement if there is no such infringement on behalf of another person (e.g. the user), which is the actual infringer in question. As it will be further discussed in a greater detail below, information service providers facilitate the users’ activities and could not be held liable, unless such activities are “infringing” within the meaning of the applicable law. Thus, the analysis of the legal issue discussed in this chapter, will inevitably proceed on the assumption that the user’s activities are “infringing” within the meaning of copyright law.

In order to analyze the liability of a host provider in the context of an open library, we first allocate the notion of an open library in the broader context of the so called “user-generated content” phenomenon” by providing a clear distinction between “open libraries” and “digital libraries”. We then continue the discussion into the technical features of a hosting providers’ function by explaining the reason for which only host providers may be associated with the operation of an open library. These issues are addressed in Part I. In Part II, we mention the key provisions of the US copyright laws essential for our analysis, while in Part III an analysis on the host providers’ liability takes place in relation to American laws and especially the US case law. In Part IV we attempt to analyze the copyright basics in terms of the European legal order along with a corresponding analysis on the rules governing a host provider’s liability with regard to the European legal framework. In Part V, finally, we conclude on a comparative analysis on our issue between the US and the EU legal order.