The knowledge standard for ISP copyright and trademark secondary liability: A comparative study on the analysis of US and EU laws

Abstract

Holders of rights sue ISPs for copyright and trademark infringement: specifically, for contributory liability through the ISP’s knowledge of user infringement. Knowledge about user infringement has been prevalently recognised as a crucial element of ISPs’ secondary liability, but the approaches concerning the knowledge standard are different in US copyright case law (traditional tort), the US Digital Millennium Copyright Act, the US Lanham Act, US trademark case law, and the EU Electronic Commerce Directive. Their differences have posed questions on the efficacy of the current knowledge standards and case law interpretations to omit legal ambiguities and offer appropriate guidance for tackling issues. This research presents that the US knowledge standards and the ECD knowledge standard apply broad knowledge standards to evaluate ISPs’ knowledge but they differ in terms of their elements and conditions for permitting ISPs and copyright holders to co-exist and combat copyright infringement. US copyright case law, the InWood knowledge standard, and the EU knowledge standard are deficient in terms of offering a suitable notice and take-down regime to reduce the duties of ISPs and to tackle the high risk of an ISP being held liable without knowledge. This is in contrast to the DMCA, which is free from such legal concerns because of its specified notice and take-down regime. Consequently, to fulfil the aims of this research, the following recommendations are made: the US copyright knowledge standard should preserve the broad knowledge standard of the DMCA, subject to implementing a compulsory notice and take-down regime, establishing a special body regarding the notification in section 512, and designing technical criteria for the ‘red flag’ test. In addition, it is recommended that the Lanham Act codify the InWood knowledge standard and the DMCA’s notice and take-down procedures. Besides, it is recommended that the ECD establish a notice and take-down regime similar to that applied by the US DMCA (subject to the above amendments).