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Towards a Law on Online Service Providers’ Liability in the UAE

  • Middle East
  • Other

10-01-2012




I was recently asked, on two occasions within one week, to advise on online service providers' ("OSP")  liability in connection with copyright infringing material. As a result, I said to myself here is a topic that is worth writing about even though the issue itself is not at all recent. In fact, it goes back to the 90's when the US legislature started examining the responsibility of OSP's. But in the United Arab Emirates ("UAE") there is no specific legislation on the topic. It is time the UAE examines passing legislation or amending its copyright law in order to regulate OSP liability.

As the use of the internet became widespread, infringing upon copyright became an extremely easy act to commit. The increasing penetration of the internet in our daily life led to an increase in copyright infringements. Obviously, it is impossible to prosecute every internet user for posting or producing infringing material but it is also unfair to expect an OSP to take action in connection with infringing material posted on its site let alone impose automatic liability on an OSP for such infringements. However, an OSP is in a position to monitor the activities taking place on its site or network. Consequently, two interests are in constant tension. On the one hand, copyright holders want to see their rights protected through the elimination of infringing material and by holding OSP's responsible. On the other hand, imposing such liability or any form of generic responsibility on OSP's would limit the growth and the spread of internet.

If and when cases involving OSP liability are reviewed by the courts in the UAE, there is a high likelihood that diverging decisions will be reached and that courts may require guidance on how to decide such cases, in the absence of a definitive legislative framework. For example, prior to having any legislation in place in the US, courts held contradicting views. Some held the OSP liable because it creates the platform that allows infringing material to be posted  while others did not find any liability as the OSP does not commit the infringement nor proactively causes its commitment .

It is not clear how UAE courts will decide on OSP liability issues as the law does not provide sufficient guidance on this matter. This makes it necessary to consider issuing a law that follows in the footsteps of other jurisdictions which have already enacted the necessary legislation. The hoped for legislation should not only govern issues of liability of an OSP when legal action is brought forward but also allow the rights holder an opportunity or a route that enables him to require removal of the infringing material without having recourse to the courts. Most of these issues were examined by the US legislature and reflected in the Digital Millennium Copyright Act  ("DMCA") issued in 1998.

The DMCA serves multiple purposes; it negates liability in the cases of passive automatic acts and it determines the grounds on which liability arises and renders it difficult to establish such liability. It achieves those purposes through requiring certain conditions to be met for the liability to occur. These conditions differ depending on the service provided by the OSP but there are two conditions that apply across the board for the OSP to be exempted from liability; 1. The OSP must have put in place a system that allows terminating the accounts of subscribers when they repeatedly commit infringing acts. 2. The OSP must not interfere with what is called " standard technical measures" . DMCA also limits liability of an OSP by preventing monetary damages from being imposed.

In addition to limiting liability, DMCA protects an OSP when the latter tries to help the copyright owner take actions against the infringing party. As a result, an OSP is encouraged to cooperate with a copyright owner as the OSP will not be held liable for removing infringing content if the infringing party brings forward an action against the OSP.

In parallel, DMCA imposes a responsibility on the OSP to receive complaints from rights owners and act upon them. It also imposes prompt removal of the infringing material.

Internet penetration and use in the UAE is very high and the problem of copyright infringement online is here to stay. Currently, an OSP does not feel itself obligated to remove infringing content based on a notice or complaint by the copyright holder. There are instances where an OSP has agreed to have discussions about removal of infringing content with copyright holders but whether such removal takes place or not is left entirely to the discretion of the OSP as there are no notice and takedown provisions in the current legislation. The rights-holder will have to bring forward a case before the courts on the basis of the UAE's copyright law and obtain a decision requiring the removal of the infringing content. The main challenge in requiring a copyright holder to file a lawsuit is the quantity of infringing material online. It would be a colossal exercise to have to file a lawsuit for every instance of infringement. Therefore, having a legislation that imposes a duty of collaboration upon OSP and removal of infringing content within certain conditions will ensure better protection of copyright.

Furthermore, even in instances where a court action may be required, a legislation can help guide the UAE courts in their assessment of OSP liability. An OSP should not automatically be held liable nor should it be allowed to get away with tolerating infringing material to be circulated or posted through its network. The basis of establishing the liability of the OSP can be clearly defined in such a legislation.

To discuss the content of this article or learn more about Eversheds in the Middle East, please contact:
Nayiri Boghossian
Khasawneh & Associates (in association with Eversheds KSLG)
NayiriBoghossian@eversheds.com 
+97 14 33 26 55 0

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