By Joe McNamee

On 1 July, 2014, the European Commission launched an oddly-named Communication entitled “Towards a renewed consensus on the enforcement of intellectual property rights.” It is good to see the Commission being ambitious, but renewing something that never existed appears to be quite challenging.

The document opens by referring to the impressive statistic that a “recent study has estimated that IPR-intensive sectors account for around 39% of EU GDP”. Sadly, the Commission chose to include this “statistic” in the full knowledge that the methodology of the study has absolutely no credibility. The fact that the Commission chose not to provide a link directly to the dodgy “research” indicates they are aware of this. The study “borrowed” the methodology of a US study that used absurdly broad definitions that led to grocery stores being classified as the number one “IP intensive industry” in the USA.

Having started to renew the “consensus” on the basis of demonstrably nonsensical “statistics, the Commission then turns to the enforcement of intellectual property rights (IPR) against “commercial scale” infringers. There is a small problem here, what does “commercial scale” actually mean? The Commission appears to be completely clear on the issue in its Communication. However, the Commission is also clear that it does not know what “commercial scale” means – having pointed out in its 2012 Roadmap on a revision of the IP Enforcment Directive that a “clearer definition of “commercial scale”” was needed to avoid end-users being unfairly target. So… the Commission is seeking a “renewed consensus” on a point where it cannot agree with itself whether existing definitions are adequate or not.

The Communication then delves back into the reservoir of questionable statistics – again failing to link directly to the report in question – simply giving the domain name (presumably of the author of the report), which is owned by a company that has a clear vested interest in over-estimating the scale of the problem, as it offers IP protection tools. The Communication explains that a global report found, on the basis of a small sample size of 800 undefined “senior executives”, 11% of their companies were “victims” of IP infringements. The actual report says that 11% said that they believed that their companies were “affected”. Being affected by something is not the same as being a victim. EDRi’s creative commons licences are occasionly breached, usually inadvertently. We are affected by these breaches, we would certainly not call ourselves victims. The Commission is not in consensus (renewed or otherwise) with the report whose statistics it is imaginatively re-engineering.

On the basis of this rather weak, if not downright misleading introduction, the Commission sets itself a series of “actions”. The first action is to raise awareness among the public (who are forced to live with the incoherence, contradictions and unpredictability of the chaotic, disjointed and incomprehensible European copyright regime) of the economic damage that THEIR actions.

It is, however, the third action, “voluntary” measures and “follow the money” that is the most outlandish. The US payment service providers (the credit card companies and PayPal) and US online advertising industry have already signed agreements with the President of the United States to take voluntary, ad hoc punitive measures against non-US services that are suspected of breaching US law. Those companies are not going to change their agreements with the US President, they are not going to be obliged to follow the rule of law, as the EU should be demanding. Instead, the European Commission is proposing to do tomorrow what the companies in question were already doing yesterday.

Commission Communication: Towards a renewed consensus on the enforcement of Intellectual Property Rights: An EU Action Plan (01.07.2014)
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52014DC0392&from=EN

Roadmap for review of the IP Enforcment Directive
http://ec.europa.eu/smart-regulation/impact/planned_ia/docs/2011_markt_006_review_enforcement_directive_ipr_en.pdf

EPO and OHIM publish misleading report on intellectual property rights intensive industries in EU economy (01.10.2013)
http://keionline.org/node/1803

Kroll: 2013/2014 Grobal Fraud Report
http://fraud.kroll.com/wp-content/uploads/2013/10/GlobalFraudReport_2013-14_WEB.pdf

Payment providers: 2011 US Intellectual Property Enforcement Coordinator Annual Report on Intellectual Property Enforcement
http://www.whitehouse.gov/sites/default/files/omb/IPEC/ipec_annual_report_mar2012.pdf

Advertising networks: White House and ad networks release best practices (19.07.2013)
http://www.lexology.com/library/detail.aspx?g=245ff468-b3f9-45df-a5e0-72758276e3be

(Contribution by Joe McNamee, EDRi)

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