COPYRIGHT ISSUES ANDTHEINFORMATION SOCIETY technology, theargument goes, will destroy the record industry, since it will undercut the profits of all involved by backing music piracy. On the other side, one finds independent musicans and others running dotcom com panies, and in particula indiv idual consumers who see the Intemet as a possibility for offering and sharing music. This promotes what is called a more democratic digital music distribution system and takes a stand that is directly opposite to what is considered to be a monopolistic and price- manipulating industry. In particular this side protests and rejects the unwill ingness of the major record companies to agree to discuss licensing their back catalogues to dotcom on-line electronic music distributors. Besides, todays consumers have high expectations of the benefits they will receive from on-line access to content. Things have become even more complicated since established and newly set up broadcasting organisations have started using MP3 technology fora new form of broadcasting which is called streaming(-audio) It is precisely the described state of affairs that inspired national and intemational legislators to take action on behalf of copyright owners and rehted right holders, leading to the strengthening of the available protective legal instruments such as a broader reproduction right and a specific communication to the public right. However, it appeared that the strengthening of exclusive rights alone was not sufficient in order to discipline what from a rights holders' perspective was and is seen as infringing free rides. This is due to the fact that in the Internet environment content is rarely, if ever, distributed directly from the rightowners to the end-users Usually, a whole range of hosting providers act as middlemen. It ra ises the question of the legal position of these intermediaries, genera lly known as the question ofon-line intermedary liability. Since this question lies at the hart of electronic commerce it is dealt with in the context of drafting new legal instruments for that purpose such as the US DMCa and the EU E-commerce Directive. In accordance with most of the already existing national case law, the US and EU legislators have chosen to exem pt access and network providers from liability for the damage done to Copyright and other rightholders with regard to copyrighted and otherwise legally protected materials(the mere conduit principle). Liability may, however, apply in cases in which the service provider knows of or rea sonably ought to have known(e.g after having notice from a rightowner) of any infringing information being passed through its service. In doing so, the promotion of e-commerce and freedom of communication have been given priority over the protection of rightholders. 24 Search engines, webpages and hyperlinks The first step taken has been to protect software and chips through ip regimes. Not surprisingly, in the slipstream thereof other technologically determined devices such as search engines, webpages, hyperlinks(and metatags)have been offered for protection under the same regimes. Although the developments in this respect are far from clear both on a national and on an intemational level and lack ing any international legal instruments, some tentative observations with regard to emerging 24. See for an overview of this devebopment Kamiel Koelman, On-line Intermediary Lability, n Hugenholtz, Copyright and Electronic Commerce, referred to in footnote 8 pp. 7-57, coming to terms with EC Directive 200031 on electronic commerce 219COPYRIGHT ISSUES AND THE INFORMATION SOCIETY 219 technology, the argument goes, will destroy the record industry, since it will undercut the profits of all involved by backing music piracy. On the other side, one finds independent musicians and others running dotcom companies, and in particular individual consumers who see the Internet as a possibility for offering and sharing music. This promotes what is called a more democratic digital music distribution system and takes a stand that is directly opposite to what is considered to be a monopolistic and price-manipulating industry. In particular this side protests and rejects the unwillingness of the major record companies to agree to discuss licensing their back catalogues to dotcom on-line electronic music distributors. Besides, today’s consumers have high expectations of the benefits they will receive from on-line access to content. Things have become even more complicated since established and newly set up broadcasting organisations have started using MP3 technology for a new form of broadcasting which is called streaming(-audio). It is precisely the described state of affairs that inspired national and international legislators to take action on behalf of copyright owners and related right holders, leading to the strengthening of the available protective legal instruments such as a broader reproduction right and a specific communication to the public right. However, it appeared that the strengthening of exclusive rights alone was not sufficient in order to discipline what from a rights holders’ perspective was and is seen as infringing free rides. This is due to the fact that in the Internet environment content is rarely, if ever, distributed directly from the rightowners to the end-users. Usually, a whole range of hosting providers act as middlemen. It raises the question of the legal position of these intermediaries, generally known as the question ofon-line intermediary liability. Since this question lies at the hart of electronic commerce it is dealt with in the context of drafting new legal instruments for that purpose such as the US DMCA and the EU E-commerce Directive. In accordance with most of the already existing national case law, the US and EU legislators have chosen to exempt access and network providers from liability for the damage done to Copyright and other rightholders with regard to copyrighted and otherwise legally protected materials (the mere conduit principle). Liability may, however, apply in cases in which the service provider knows of or reasonably ought to have known (e.g after having notice from a rightowner) of any infringing information being passed through its service. In doing so, the promotion of e-commerce and freedom of communication have been given priority over the protection of rightholders.24 Search engines, webpages and hyperlinks The first step taken has been to protect software and chips through ip regimes. Not surprisingly, in the slipstream thereof other technologically determined devices such as search engines, webpages, hyperlinks (and metatags) have been offered for protection under the same regimes. Although the developments in this respect are far from clear both on a national and on an international level and lacking any international legal instruments, some tentative observations with regard to emerging 24. See for an overview of this development Kamiel Koelman, On-line Intermediary Liability, in Hugenholtz, Copyright and Electronic Commerce, referred to in footnote 8 pp. 7-57, coming to terms with EC Directive 2000/31 on electronic commerce