EDRi responds to IPR Enforcement consultation
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Deutsch: EDRi-Stellungnahme zum Urheberrechts-Konsultationsverfahren
European Digital Rights has submitted on 31 March 2011 its response to the European Commission's consultation on the implementation of the IPR Enforcement Directive.
The response examines the claims made by the Commission, the evidence (or lack thereof) for its assumptions and the lessons that it draws and fails to draw from the experience of European citizens with the implementation of the Directive. The first section of the response deals with the overall approach of the Commission and its reaction to what it calls "ubiquitous" unauthorised filesharing online. EDRi questions whether many of the assumptions regarding the "cost" of such filesharing are correct, particularly with a growing body of research indicating that the impact is either zero or close to zero.
This leads on to a more fundamental question of the legitimacy of current copyright legislation. If breaches really are "ubiquitous," is a response which is mainly or wholly based on repression either proportionate or effective? With equally ubiquitous problems concerning the cost, the format and the availability of audiovisual material, would it not be better to properly service the market rather enforce respect for a broken market?
With regard to criminal law and unauthorised access to audiovisual content, EDRi argues that the Commission's current approach of treating "counterfeiting and piracy" as one phenomenon, as if the causes and solutions for counterfeit medication are the same as for private music downloading, is simply wrong. Indeed, worst than that, treating both as the same can only result in either counterfeit drugs being subject to unduly weak countermeasures or unauthorised access to audiovisual material being treated disproportionally harshly.
The response pays particular attention to the vague and dangerous assertion that the fundamental right to privacy can somehow be re-balanced against the right, included in the Charter of Fundamental Rights, to property. The response points out that a balance between rights can never be done in the abstract, rendering the whole approach by the Commission meaningless. It goes on to point to the UNESCO Convention on Protection and Promotion of the Diversity of Cultural Expressions (which the EU collectively and almost all Member States individually have signed up to), which, in article 2, explains that cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed."
In its report, the Commission also subtly mentions that "it could be useful to clarify that injunctions should not depend on the liability of the intermediary". What this means in practice is that courts could ignore the provisions of the E-Commerce Directive on "mere conduit" (regarding access to illegal material) and on the imposition of a "general obligation to monitor". The Commission's view - and the view that it has given to the European Court of Justice in the Scarlet/Sabam case - is that national courts may (and should) impose monitoring, blocking and filtering obligations on Internet service providers and that the E-Commerce Directive should not prevent them from doing this. The Commission's analysis fails to acknowledge, let alone address, how this would be compatible with the European Charter of Fundamental Rights - the same Charter that it so eagerly uses to defend the weakening of the fundamental right to privacy.
The EDRi response concludes by listing a set of issues to be addressed in any impact assessment used to justify a re-opening and extension of the IPR Enforcement Directive.
EDRi response to IPRED Consultation (31.03.2011)
Report on the enforcement of intellectual property rights (COM(2010) 779)
Analysis of the application of Directive 2004/48/EC on the enforcement of
intellectual property rights in the Member States (SEC(2010) 1589)
(Contribution by Joe McNamee - EDRi)