IPR Enforcement discussions in the European Parliament

By EDRi · March 24, 2010

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Deutsch: [Diskussionen im EP zur Durchsetzung des geistigen Eigentumsrechts | http://www.unwatched.org/node/1791]

The recent votes in the Industry and Internal Market Committees of the
European Parliament (who are providing Opinions to the responsible
Committee – the Legal Affairs Committee) have given a good insight into
the main battle lines as the Parliament reaches the final stages of adopting
its non-legislative report on IPR enforcement. These can be broadly
categorised as follows:

1. Data Protection

Efforts are being made to downgrade citizens’ fundamental right to privacy
through amendments to the Gallo Report. There were two amendments of this
type in the Internal Market Committee, one of which was rejected and the
other of which was withdrawn. We are already seeing widespread breaches of
personal data through online collection of IP addresses, unauthorised
“warning” letters to consumers and, more recently, a plan by UK ISP Virgin
Media to carry out widespread “deep packet inspection” surveillance of their
networks to analyse possible unauthorised use of music. It is to be hoped
that the European Parliament will see that the rule of law will hardly be
reinforced by adopting texts seeking to encourage and defend such

2. Criminal sanctions for IPR infringement

The Council of Ministers has proposed criminal sanctions for “counterfeiting
and piracy”, without any indication of the scale of the infringements which
would attract such penalties. Similarly, the draft Legal Affairs Committee
report prepared by Ms Gallo (EPP, France) asks the Commission to put forward
a new Directive on criminal sanctions.

3. Confusion of unauthorised filesharing and counterfeiting

There are only two possible outcomes of confusing life-threatening
counterfeit medicines or fraudulently sold products on the one hand and
private individuals sharing content on the other. Either the fight against
counterfeiting will be weakened, weighed down by being conflated with an
innocuous activity, or private consumers will be increasingly treated like
organised criminals.

4. “Cooperation” and “self-regulation”

Coercion of ISPs, as described in paragraph 20 of Ms Gallo’s draft report,
is a major danger for the openness of the Internet in Europe and globally.
That text essentially says to ISPs – “either impose policing measures of
your own choice, or we will impose them by law”.

This intention behind this coercion is clearly shown by the leaked “digital
chapter” of ACTA. That text suggests that ISPs should introduce “policies”
such as disconnection of alleged infringers or lose the legal certainty
offered by existing “safe harbours” from liability. These policies would be
imposed outside the democratic process, beyond the reach of the necessary
restrictions placed on governments and the EU by the European Convention on
Human Rights and the Charter of Fundamental Rights and would facilitate the
growth of an anti-competitive non-neutral Internet in the European Union.

5. Demands for immediate legislation

The IPR Enforcement Directive is currently being assessed. It is very
obvious that this process should be allowed to be completed and a thorough
investigation of the outcomes must be undertaken before any further
legislation should be imposed on European citizens and European business.
That said, with an overlap of Commission personnel between those working on
ACTA and those working on the report on the implementation and enforcement
of the IPR Enforcement Directive, we should not expect much from that

6. Bureaucratic measures to slow down reform of licensing and access to

It is essential to take every possible action to ensure the introduction of
the most open, transparent and functional licensing regime possible in
Europe. Amendments arguing for new impact assessments, reviews of whether
all sectors would benefit from wider availability of their products appear
to have no motivation other than to slow down availability of legal content,
thereby creating problems for IPR enforcement. Several such amendments have
been adopted in the Internal Market Committee recently.

7. General, directionless statements about the cost of counterfeiting and/or
unauthorised filesharing.

The rash of directionless amendments making general statements regarding the
scale of two very different, conflated problems undermines the credibility
of the Parliament’s work on these issues.

8. Other issues

Efforts are being made to create support for the proposed new Observatory as
(yet) another creator of soft law. This was made quite clear by the Council
Conclusions on IPR enforcement (paragraph 33) which calls for the
Observatory to “pay special attention to the compilation of best practices
in public and private sectors and codes of conduct in private sectors”. This
is quite clearly not the role of an “observatory” and also risks feeding
into the “self-regulation” dangers mentioned above. The Industry Committee
adopted an amendment aiming specifically at stopping this development. It
remains to be seen whether the Legal Affairs Committee will take this

Draft Legal Affairs Committee report (13.01.2010)

Council Conclusions on IPR Enforcement (1.03.2010)

EDRi-gram 8.4: EP: Draft reports on IPR enforcement published (24.02.2010)

(Contribution by Joe McNamee – EDRi)