External Defences

Abstract

Some defences are available on grounds that are extraneous to copyright and are based either on other bodies of law, such as competition law or e-commerce protection, or on general legal principles. These include, for instance, defences available to Internet service providers for infringements carried out by their users, including defences for hosting, caching, and ‘mere conduit’. Others are available on the grounds of competition law, such as refusal to license or abuse of dominant position, which could have a legal basis of application—inter alia—in certain mass digital activities of online services. Other available defences fall under general legal principles that can be invoked in cases where copyright exceptions do not cover an activity for which there is a principle-based justification for the particular conduct. Such a justification could be the public interest or the doctrine of the ‘abuse of right’. There are also a number of uses that can be permitted on grounds of benign infringement on the basis of the ‘innocuous use’ doctrine. Unlike other defences to copyright, these defensive rules represent instances where copyright may be subject to limitations as a result of its encounter with other legal orders. Such instances have either not been institutionalized within copyright law, such as speech entitlements or public policy privileges, or may have been partially included within it while offering principle-based explanations for acts of copyright infringement on the basis of legal grounds found in other areas of law or broader legal principles. These defences are an essential component to the understanding of the scope of permissible copyright use on the Internet as they can be extremely relevant in cases which involve online services and business models, such as hosting services, and online content use more broadly.