Concorso di responsabilità per violazione del diritto d'autore: prospettive europee e comparate

The aim of this research is to focus on the specific issue of secondary liability in copyright law, and in intellectual property law in general, through a comparative perspective, in order to examine how this legal phenomenon is dealt with in different legal systems, both of Common and of Civil law. In fact, the notion of 'secondary liability', originally developed within the Common law legal tradition, is a general 'umbrella term' encompassing all kinds of behaviours that do not constitute direct copyright violations, but somehow represent forms of facilitation, participation or contribution to copyright infringement and, thus, cannot be ignored by the law, especially within the digital environment. Thus, courts and scholars tried for long to develop some general principles and rules that could guide them in the assessment of the tortious responsibility of all contributors and facilitators that cannot be considered direct copyright infringers. However, the way in which this issue is dealt with in the various legal systems is strikingly different. In fact, while Common law countries have specific provisions or judge-made rules on secondary liability in copyright law, Civil law systems lack such an arrangement and draw upon general civil-code provisions on tortious co-responsibility in order to assess the legal position of these intermediate figures of contributors. Our analysis starts with a brief overview, conducted in chapter 2, on the general concepts of contribution to someone else's infringement and of secondary liability, on the related comparative legal issues and on the possible theoretical justifications for secondary liability, and then it moves on to examine the liability regime applied in different countries to multiple direct co-infringers and to mere contributors to copyright infringement, analyzed, respectively, in chapters 3 and 4. Chapter 5 offers a brief focus on the assessment of the legal position and liability regime of those figures of organizers of physical and digital marketplaces, as a clear example of contributors to copyright ¿ or trademark ¿ infringement that do not engage in any infringement themselves. Then, chapter 6 is dedicated to the immunity regime of internet service providers, exempted from civil liability both in the EU and in the US, through specific statutory provisions, while chapter 7 constitutes a brief parenthesis in this general discourse, because it concerns the specific issues of jurisdiction and choice of law in copyright and trademark cases when many defendants are involved, as it happens in cases of multiple co-infringers or contributors to the infringement. In the end, we will draw some conclusions on the role of this research in the light of the need for common principles of secondary liability.