By Joe McNamee

In the EDRi-gram on 19 October, we reported on the draft “guiding principles” for a “follow the money approach” for online intellectual property right (IPR) infringements. The “guiding principles” were finalised in a meeting on 22 October. Having been very critical of the draft – and still fundamentally opposed in principle to privatised law enforcement online and worried by some of the proposed strategies – we recognise that some surprisingly positive amendments were made at the last minute. The changes directly address some of the criticisms made in our previous EDRi-gram article.

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The reference to the right to access “lawful” content was removed, as was the wording “borrowed” from the previously rejected Anti-Counterfeiting Trade Agreement (ACTA).

In the earlier draft, review processes were mentioned in paragraph 7 of the 9 paragraphs, implicitly excluding the final two paragraphs (on “key performance indicators” (KPIs) and respect for fundamental rights) from their scope. This has been improved by moving the review paragraph to the end of the document.

The review process of respect for the agreement will be carried out by a recognised and independent third party, as in the earlier draft. However, instead of signatories undertaking to set up a working group on verification and compliance, it is now the European Commission that will take over this role.

In the final changes, the European Commission also takes over responsibility to set up a working group on the KPIs – a role previously foreseen for the signatories. Indeed, the European Commission services responsible for this code of conduct have been very sensitive to EDRi’s argument that it is impossible – practically and legally – to have a process of this kind, without agreed KPIs (an argument that other parts of the Commission are less willing to recognise).

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The internet is littered with failed and counterproductive “self-regulation” initiatives that are ineffective, but still fully or partly operational. They are not removed, because nobody knows whether they might be achieving whatever purpose they might originally have had, and it is too politically difficult to get rid of them. The lazy and haphazard “hate speech” code of conduct negotiated by the European Commission is a good example of the lack of diligence the Commission traditionally has in such initiatives. In that code of conduct, there is not even clarity about what exactly is being deleted or why – based on terms of service or law.

Importantly, a small but meaningful text change is that the complaint and adjudication mechanism has to be “accessible”. This is an important change, although it is still difficult to imagine how to make this work in an environment which is notoriously untransparent.

Another interesting change is in the section on fundamental rights. The Charter of Fundamental Rights of the European Union protects rights, but it also establishes solid rules on when these rights may be restricted. This aspect of the Charter is very important in this context, as the proposed measures are unquestionably a restriction on fundamental rights. The final “guiding principles” document now makes reference to those rules as well. The independent, third party verification of, for example, the data from the KPIs, will have to assess, for example, whether the restrictions imposed are clear enough to be considered to be “provided for by law” and if the project genuinely achieves objectives of general interest.

In short, while having major flaws inherent in such an approach, the final “guiding principles” implement a degree of diligence that is unheard of in such European Commission projects. They include recognised, independent third party verification and an accessible complaint and redress mechanism. They have fundamental rights safeguards that explicitly cover not just the rights, but also the EU primary law rules on which restrictions can be imposed. And, as a significant example of “best practice” in an environment with precious little good practice, meaningful KPIs. The rest of the European Commission can learn some valuable lessons from how the diligence shown by their colleagues Directorate General Growth.

The next step is the setting up of working groups to give meaning to the text.

EDRi: “Follow the money” on copyright infringements (19,10,2016)
https://edri.org/follow-money-copyright-infringements/

Guiding principles: The follow the money approach to IPR enforcement
https://edri.org/files/guiding_principles_follow_the_money_approach_ipr_enforcement.pdf

(Contribution by Joe McNamee, EDRi)

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