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Web caching and the law: defending the EC legislators
The recent furore over Web caching has missed the point - at least as far as Europe's major publishers are concerned. Angela Mills, executive director of the European Publishers Council, outlines why she believes the laws going through Brussels will work in the online world

By editorial@silicon.com

Published: Thursday 25 February 1999

Silicon.com's recent articles on Web caching expose the conflict between copyright protection on the one hand, and liability for illegal material on the other. There are, in fact, two pieces of draft legislation before the European Parliament: one on copyright (to which MEP Graham Watson referred to in a recent Silicon.com story, 'MEP leads Web cache fightback'); the other on ecommerce.

The latter contains provisions on liability for illegal material, including exemptions from liability for 'mere conduits' and 'caching' and will certainly sort out the concerns addressed by Mr Watson without interfering with the core rights of content producers.

It is essential that the legal protection of copyright material is dealt with separately from the liability for content. Content producers, such as publishers, must be able to control dissemination of their material and to authorise copies or not.

Content producers also accept primary liability for their content. Just as in the offline world, newspaper publishers must ensure their content is legal. The question of liability for content is being dealt with in the more broadly-based ecommerce directive, as copyright infringements are not the only sources of illegal acts - there are others, such as defamation, and obscene or harmful content.

The hierarchy of responsibility of who is liable for what and when, and who needs to act and under what circumstances, is dealt with in the draft directive on ecommerce. Mr Watson's concerns will be met by that directive, which provides a reasonable balance between primary liability and the duty of all partners in the electronic networked world to act when piracy or other illegal activities take place.

A considerable body of law has been built up on these matters over the years, including, for example, that physical distributors and retailers of copyright goods have a liability from the moment they know, or should know, of a purported infringement.

In the information society, there is increasing confusion between the role of conduits, distributors, and content providers, and it is clearly vital that operators are, firstly, not able to escape liability as having one role when in fact acting in another, and secondly, take an active part in helping prevent infringement.

We are concerned that established rules on liability should be maintained in the digital environment, and that partners in the information chain should each have to play a proper part in ensuring that the law is sensibly enforced.

Happily, we regard the proposed draft, defining the liability of 'mere conduits' (Article 12), 'caching activities' (Article 13), and 'hosts' (Article 14), while providing for the exclusion of obligations on service providers to monitor their services actively (Article 15), as providing a broadly acceptable regime.

We could not accept any proposals which would have the effect of diminishing copyright protection, or making copyright more difficult to enforce, or, on the other hand, which imposed unduly onerous restrictions on content providers in their editorial function.

In general, the Commission's proposals on liability provide a regime very similar to that recently agreed in the US in the Digital Millennium Copyright Act, with the addition of the availability of injunctive relief, presumably designed to provide a fallback mechanism should a service provider wantonly fail to assist in the prevention of unlawful activity when other remedies against a third party have failed.

The proposals appear to distinguish clearly between different functions, and have adequate criteria for determining into which category an activity falls. The exclusion from liability of a party merely engaging in providing a conduit, and the imposition of liability of a host or caching service when on notice of infringement, seem acceptable.

NB: The European Publishers Council (EPC) is a group of chairmen and CEOs of European media corporations actively involved in multimedia markets spanning newspaper, magazine and online database publishers; many EPC members also have significant interests in commercial television and radio. The EPC was founded with the express purpose of reviewing the impact of proposed European legislation on the press; and then expressing an agreed opinion to the initiators of the legislation, politicians and opinion-formers.