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Internationaler Gewerblicher Rechtsschutz und Urheberrecht II

6.2 - Liability exclusion

A special kind of vicarious infringement is that of Internet providers. No copyright infringement in the Internet can be done without the support of providers either by Internet access, the transmission of information through the Internet or the providing of web-sites with copyrighted content. To secure the economic development and expansion of the Internet the Digital Millennium Copyright Act 1998 (DMCA) brought the new rule in 17 U.S.C. § 512 that “technical” provider should be free of copyright liability.

Committee Reports – House Report 105-551 (1998)

(…) Much like the agricultural and industrial revolutions that preceded it, the digital revolution has unleashed a wave of economic prosperity and job growth. Today, the information technology industry is developing versatile and robust products to enhance the lives of individuals throughout the world, and our telecommunications industry is developing new means of distributing information to these consumers in every part of the globe. In this environment, the development of new laws and regulations will have a profound impact on the growth of electronic commerce and the Internet.
(…)The Committee on Commerce is in the midst of a wide-ranging review of all issues relating to electronic commerce, including the issues raised by this legislation. The growth of electronic commerce is having a profound impact on the nation's economy. Over the past decade, the information technology sector of our economy has grown rapidly and is seen by many as playing a leading role in the current economic expansion. (…)
The debate on this legislation highlighted two important priorities: promoting the continued growth and development of electronic commerce; and protecting intellectual property rights. These goals are mutually supportive. A thriving electronic marketplace provides new and powerful ways for the creators of intellectual property to make their works available to legitimate consumers in the digital environment. And a plentiful supply of intellectual property--whether in the form of software, music, movies, literature, or other works--drives the demand for a more flexible and efficient electronic marketplace. (…) The liability of on-line service providers and Internet access providers for copyright infringements that take place in the on-line environment has been a controversial issue. Title II of the Digital Millennium Copyright Act addresses this complex issue. Title II preserves strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment. At the same time, it provides greater certainty to service providers concerning their legal exposure for infringements that may occur in the course of their activities. (…)

New Section 512 contains limitations on service providers' liability for five general categories of activity set forth in subsections (a) through (d) and subsection (f). As provided in subsection (k), new Section 512 is not intended to imply that a service provider is or is not liable as an infringer either for conduct that qualifies for a limitation of liability or for conduct that fails to so qualify. Rather, the limitations of liability apply if the provider is found to be liable under existing principles of law. The limitations in subsections (a) through (d) protect qualifying service providers from liability for all monetary relief for direct, vicarious and contributory infringement. Monetary relief is defined in subsection (j) (2) as encompassing damages, costs, attorneys' fees, and any other form of monetary payment. These subsections also limit injunctive relief against qualifying service providers to the extent specified in subsection (i). To qualify for these protections, service providers must meet the conditions set forth in subsection (h), and service providers' activities at issue must involve a function described in subsection (a), (b), (c), (d) or (f), respectively. The liability limitations apply to networks `operated by or for the service provider,' thereby protecting both service providers who offer a service and subcontractors who may operate parts of, or an entire, system or network for another service provider. (…)

The existing system of liability exclusion distinguishes between the service provider and the content providers. For the liability exclusion of the service provider three requirements must be fulfilled generally.

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