By Diego Naranjo

Everyone is talking about EU copyright reform. However, in the European Parliament, everyone is having the same discussions on enforcement that they were having ten years ago – and talking about stopping any reform.

The Draft Report “Towards a renewed consensus on the enforcement of Intellectual Property Rights: An EU Action Plan” (2014/2151(INI)) presented by Member of the European Parliament (MEP) Pavel Svoboda reacts supportively to the rather bland, regressive and unimaginative Commission Communication of the same name. Sadly, Mr Svoboda seems to be choosing to support the mistakes that the Commission’s view that the failures of the last ten years should be the model for the next decade.

The Draft Report mixes, sometimes in the same phrase, totally different issues in Intellectual Property Rights (IPR), such as counterfeit goods and online content. This leads him to write that “the enforcement of intellectual property rights plays a significant role in ensuring consumers’ health and safety”, although this connection seems somewhat vague. Svoboda also uses terms which we already rejected in the Communication on which this Report is based, and talks about the “commercial scale infringement” that even the Commission publicly admitted that, particularly the online environment, would also require a clearer definition of “commercial scale”, although everyone now appears to have forgotten this.

More worryingly, the Report appears to call for the implementation of certain enforcement measures which do not require public or judicial supervision. The Report refers to “due diligence” procedures, without being clear about whether it is talking about online or offline, where this would have very different meanings. It speaks supportively of “follow the money”, without any particular definition or understanding of what this might be. The whole Report might be understood as wholesale privatisation of regulation of freedom of communication. Or not.

The Report also applauds the work of the Observatory on IP Infringements, presumably because the European Commission asked it to. One would have to search for a long time to find anything of high quality produced by the body since its inception.

There are, however, some positive aspects of this Draft Report. For example, it states that there is the need for more information about what citizens are allowed to do with protected content. EDRi has been calling for a modernised and harmonised system for copyright, since the system which is still in force is not in line with the uneeds of users in the 21st century. Svoboda also expresses his concerns on the “divergent interpretations of certain provisions of the directive result in differences in its application in the Member States”. Indeed the fact that national courts have been implementing the IPR Enforcement Directive in order to clarify what the legislator could not clarify, which is why reform is needed. The situation is that critical that, if the EU legislator just took the opportunity to make sense of the copyright regime, it would be already a victory.

The Opinions proposed by the Committee on Culture and Education (CULT) and Internal Market and Consumer Protection (IMCO) do not give any more hope. We can find in both of them the same references to the same vague and misleading terms (“commercial scale infringement”, “follow the money approach”, etc) and reference to the same statistics that EDRi and the Copyright for Creativity (C4C) coalition have already definitively debunked to “describe” the impact of infringements. The amendments tabled by MEPs in the CULT committee are beyond parody. One, for example, removes demands for statistics to be reliable, precised and unbiased!

Draft Report: Towards a renewed consensus on the enforcement of Intellectual Property Rights: An EU Action Plan” (2014/2151(INI))
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52014DC0392

Roadmap for renewal of IPRED
http://ec.europa.eu/smart-regulation/impact/planned_ia/docs/2011_markt_006_review_enforcement_directive_ipr_en.pdf

CULT Opinion
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-544.344+01+DOC+PDF+V0//EN&language=EN

CULT Amendments
http://www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&reference=PE-544.345&secondRef=01&language=EN

IMCO Opinion
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2bCOMPARL%2bPE-546.649%2b01%2bDOC%2bPDF%2bV0%2f%2fEN

Copyright for Creativity – Myths and facts
http://copyright4creativity.eu/myths-facts/

(Contribution by Diego Naranjo, EDRi)

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