In the most recent German academic literature, increasing attention has been paid to the inner inconsistency of the German approach es to contributory liability. In fact, the most recent judgment of the First Civil Senate of the Federal Court of Justice on the contributory liability of an eBay account holder which included damages even seemed to point cautiously in that direction. However, the court was eager to emphasise that this case was a special case, not to be generalised in the future.
Timothy A. Pine, TAP International, LLC
Thus, for the moment the split legal situation with regard to contributory liability in Germany will continue to exist. Remarkably, the different concepts of the different Senates of the Federal Court of Justice can be found in other Member States of the European Union as will be shown in the following discussion of French and UK rules and principles on contributory liability. In this regard, beyond specific statutory provisions, such as the provisions on indirect patent and trade mark infringement Patents Act, section 60 2 , Trade Marks Act , sections 9, 10 as well as some specific provisions of the Copyright, Designs and Patents Act , sections 22 to 26 on certain contributory acts in copyright law, UK common law and equity are decidedly more contained with regard to contributory liability for IPR infringements than German law.
UK common law and in particular the law relating to joint tortfeasance governs the issue of accessory liability for IPR infringement in England and Wales. Thus, in contrast to German law, in principle, the rules governing contributory liability in the case law apply to the infringement of all kinds of IPRs alike, as they reflect general principles of tort law. The basic principles were laid down in the two Amstrad cases, 31 concerning the use of Amstrad tape recorders for copyright infringement by the purchasers of this equipment.
It was held that merely supplying with knowledge and intent, a machine which is capable of being used for lawful or unlawful purposes, is not enough to make the supplier himself an infringer or a joint tortfeasor with someone who uses that machine to infringe copyright. In particular, as Amstrad had no control or specific interest in the subsequent use of its models by the purchasers, the necessary precondition for joint tortfeasance, i. Moreover, Amstrad did not make or authorise other persons to use its models for copyright infringement nor did it in any other way procure subsequent direct infringements of copyright by inducement, incitement or persuasion.
However, such identifiable procurement of a particular infringement is a necessary precondition of joint infringement according to CBS Songs Ltd v Amstrad. The mere facts that the use of Amstrad equipment facilitated infringement, and that Amstrad knew that generally it was serving a market for devices which could and would be used by some purchasers for direct infringement, were not enough for procuring the doing of the direct acts of infringement. Consequently, Amstrad did not owe any duty of care to prevent, discourage or warn against infringement.
Further case law on patent infringement as well as on joint tortfeasance in general has affirmed the limitation of the concept of indirect infringement to the two main categories of joint tortfeasance, i. In the most widely discussed UK case on provider liability, i. The insurance factor, i. Justice Arnold , eventually did not change that result. Indeed, that judge explicitly acknowledged a certain sympathy with the suggestion that eBay could and should deal with the problem of infringement by accepting liability and insuring against this risk by means of a premium levied on its sellers as the platform created a new form of trade which carried with it a higher risk of infringement than more traditional methods of trade.
Indeed, this would amount to a circular argument. However, several passages of the judgment emphasise the significance of the substantial risk of IPR infringements which eBay creates as well as the fact that at least in certain specific situations, such as imports from non-EEA countries on the eBay-platform, the company comes very close to performing a biased role in favour of direct acts of infringement.
This corresponds to the broadly drafted concept of contributory tortious liability in German patent law.
Mr Justice Arnold however regarded that way as closed under common law because, in contrast to the general principles of German tort law, mere facilitation with knowledge and intent cannot suffice to establish tortious liability for the infringement of an IPR under English law.
In order to establish liability in such cases it would be necessary to acknowledge a third category of tortfeasance in the case of mere knowing facilitation of direct acts of infringement by way of supplying technology or other infrastructure which is necessary for committing these acts. If that third category were established, the specific conditions and extent of such liability could subsequently be consistently limited and specified on the basis of a flexible standard of the reasonable duty of care to prevent direct acts of infringement which might evolve in the case law.
However, the potential break that this new category of liability might signify for the general principles of tort in the UK cannot be denied. Instead, in light of the alleged and comparatively limited European obligation to establish the possibility for seeking injunctive relief against intermediaries, the court turned to equitable injunctions as a possible remedy in UK law. In its recent ruling, 47 the CJEU has refined its interpretation of the scope of Article 14 of the E-Commerce Directive and has clarified the fundamental relationship of Articles E-Commerce Directive to Article 11 of the Enforcement Directive thereby developing a line of precedent on the intermediary liability of online service providers.
The CJEU picks up the threads of the Google France rulings, 48 emphasising that the safe-harbour privilege of Article 14 of the E-Commerce Directive merely applies to neutral activities of the operator of the online market place, as opposed to an active assistance in the contested activities of the direct infringers. Before the CJEU's response, the High Court had already considered whether a court of equity had the power to grant injunctive relief in relation to contributory activities of a host provider in respect of the direct infringements of the users of the service.
According to section 37 1 of the Supreme Court Act and related case law, 59 the power of the High Court to grant equitable injunctive relief by interlocutory or final order is, in principle, unlimited. According to the leading authorities in the case law, however, the actual exercise of that power is limited to situations where a party has invaded or threatens to invade a legal or equitable right of the claimant or where a party has behaved or threatens to behave in a manner which is unconscionable.
This broad ambit of possible injunctive relief with regard to the imminent or alleged infringement of legal or equitable rights in the case law has even once been specified to apply in a situation in which the defendant was in possession or control of goods, the dissemination of which would have infringed the claimant's patent or trade mark rights.
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Instead, that Article would provide the principled basis for the exercise of an existing jurisdiction in a new way. From this, it follows that if European law requires the grant of an injunction against intermediaries, such as eBay, in a concrete case the High Court will now comply with this requirement of European law by extending the equitable principles on injunctive relief to cases where an IPR is allegedly infringed or threatened to be infringed.
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The scope of related orders will be defined according to the relevant obligations in European law as they have now been laid down by the CJEU. Indeed, the High Court's reference decision was explicitly inspired by the Internet Auction series of cases, and by associated extra-judicial explanations of the President of the First Civil Senate, Joachim Bornkamm. In common law and equity there exists a two-tier system of traditionally limited tortious liability including the possibility of damages claims for genuine cases of joint infringement, where the intermediary's specific knowledge and inducing or collaborating activity in relation to particular infringements or at least the clearly objectively biased position of the intermediary as a basis for suggesting a tacit agreement on a common design to infringe IPRs can be shown; and a broader concept of equitable contributory liability for merely causing the direct infringements of third parties, limited, however, to injunctive relief amounting to the duty to establish proportionate preventative measures, such as filtering or blocking of certain content or sites.
Remarkably, this system of contributory liability in English law corresponds to the general structure of the case law of the First Civil Senate of the Federal Court of Justice on contributory liability for copyright and trade mark infringement in German law. An alternative concept of contributory liability in German law has not been noticed by the High Court. In the field of patent law, the case law of the Tenth Civil Senate establishes tortious liability for each adequate causation of the infringement of an IPR where the participant did not comply with her reasonable duties of care, and, therefore, acted negligently.
Such broad contributory tortious liability is consistently limited by applying strict criteria as to the standard of the flexible duty of care. In UK law such a broader concept of tortious liability does not exist. The establishment of a comparable figure of secondary liability in the English law of torts would go beyond the minimum requirements of European law. As for the domestic law of England and Wales, it would in fact establish a new third category of joint tortfeasance in IP on the grounds of the mere knowing and negligent facilitation of direct acts of infringement by third parties.
The establishment of such a new tort does not seem likely in the near future. Paradoxically, this exactly mirrors the more hands-on approach of the French courts to contributory liability which will now be discussed. However, there is no specific provision on indirect trade mark infringement. More important than these special statutory provisions is the general basis of contributory liability in French civil law, i.
The relevant rules are part of the general law of torts and are thus of a general nature. Consequently, at the outset these rules apply to the infringement of all kinds of IPRs. Within this broad framework of general tort liability, any contributory liability in the field of IPR infringement can be covered on the essential condition that the defendant acted negligently, i. The remedies for this action are not limited to injunctive relief. Instead, because the negligent contributory causation is regarded as a tort, all measures and remedies applicable to direct IP infringement including damages will also be available against a contributory or secondary infringer.
A multitude of direct and indirect infringers will be jointly and severally liable for damages claims. The basic structure of the French system of contributory liability thus corresponds to the broad construction of tortious liability which the First Civil Senate of the Federal Court of Justice has established in respect of German patent law.
In principle, French courts have approached the most practically pertinent area of contributory liability, i. Thus, a provider can be liable as a contributory infringer if it has adequately caused acts of direct infringement, and has acted negligently because it disregarded reasonable duties of care to identify and prevent direct acts of infringement. In early French case law, such duties of care were specified by the courts rather rigorously. Accordingly, in some lower court cases, Google was held liable as a tortious infringer because it offered the AdWords program without taking reasonable measures, such as an ex ante control, to prevent the registration of trade mark protected keywords.
Consequently, in three of these cases the Cour de Cassation referred different legal issues concerning Google's activities as direct trade mark infringements or because of role as an intermediary to the CJEU for a preliminary ruling. As for a concept of contributory infringement, AG Maduro did not recommend that the CJEU adopt such a wide understanding of the concept of trade mark infringement in European trade mark law.
The CJEU further emphasised that the mere facts that the referencing service is subject to payment, that the service provider sets the payment terms or that it provides general information to its clients cannot have the effect of depriving the service provider of the exemptions from liability provided for in the Directive.
On the general concept of contributory liability in French law, in principle contributory liability is triggered in the case of any wilful and negligent causation of IP infringement by third parties.
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The main limiting factor to that broad concept of tortious liability is the element of faute, i. If the defendant has not complied with such reasonable duties, contributory liability might be addressed by all the remedies and measures which are applicable in a case of direct IP infringement. The structure of this concept comes very close to the concept of the Tenth Civil Senate of the Federal Court of Justice in German patent law.
As for the question, whether there are common rules for the different kinds of IPRs, no general answer can be given. While in English and French law the concepts of contributory liability are consistently rooted in the general principles of tort law or equity , in Germany, two structurally different concepts co-exist in copyright and trade mark law on the one hand and in patent law on the other. The framework of secondary European law is comparatively limited for the time being.
Moreover, the court suggests some concrete preventive measures which can be imposed on the providers in a non-exhaustive way and emphasises the principle that such measures must be effective and dissuasive as well as proportionate. In particular they must not amount to a general monitoring or filtering duty Article 15 E-Commerce Directive. In SABAM these principles have been extended to the duties of access providers and social networks with regard to possible copyright infringement by the users; at the same time, the limits of such duties which follow from Article 15 E-Commerce Directive have been additionally rooted in the framework of European fundamental rights.
Notwithstanding the remarkable differences in the structure and legal consequences of contributory liability in the sense of legal rules , certain common elements of assessing secondary liability in the sense of more general principles can therefore be identified. Specifically, as objective factors, the degree of the objective risk caused by the secondary infringer as well as the degree of control the secondary infringer has in relation to the acts of direct infringement, play a significant role in assessing contributory liability.
Subjectively, actual and specific knowledge of particular infringements is an important element to delineate the area of tortious liability in many Member States' laws. Here, additional values of a general nature come into play — such as the interest in the maintenance of an adequate level of protection of personal data, as well as of a neutral infrastructure of the reasonably free and unrestrained exchange of information as well as free competition within the network see the CJEU's SABAM judgments.
In Germany and in many other Member States as well as globally, 67 the crucial limiting factor of secondary liability is non-compliance with a reasonable duty of care to prevent direct acts of infringement. The flexible standard of reasonableness or proportionality is adjusted in the case law by assessing all the facts of a particular case, specifically in the framework of the structural guidance which has been outlined in the preceding paragraph. Home Theaters Headphones. Towels Sink Urinals.
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