Intellectual Property Liability of Consumers, Facilitators and Intermediaries: Comparative Concepts

Intellectual Property Liability of Consumers, Facilitators and Intermediaries: Comparative Concepts
Anselm Kamperman Sanders

ISBN 978-90-411-4126-2
2012 Kluwer Law International BV, The Netherlands

Online trade and exchange of physical and digital goods is very much on the rise, leading to a growth in the number of intermediaries engaged in supplying the technical means and services for online commerce. Increasingly, questions are raised in respect of the manner in which liability of intermediaries for copyright and trademark infringement committed by others can be established. This contribution outlines the liability regime that intermediaries may face when assisting others to directly infringe copyright and trademark rights, or when providing others with the means to do so. What we will see is that there is an increased willingness of courts to hold intermedi- aries liable either as accessories to a single act of infringement, or as facilitators of whichever third party may be engaging in the infringement of intellectual property rights. These new torts of intellectual property infringement all require a certain degree of proximity between the tortfeasor and the infringer. This proximity means that the tortfeasor must be able to benefit from the same limitations and exceptions that are available to the users of intellectual property. However, the fact that proximity does not always mean that the tortfeasor must be treated in exactly the same fashion as the infringer of intellectual property rights, is evidenced by the fact that intermediaries may be able to benefit from safe havens that shield their operations from liability for intellectual property infringements.