European Commission consultation on IPR enforcement

By EDRi · June 15, 2011

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Deutsch: [Konsultationsverfahren zum EU-Urheberrecht |]

Last week, the European Commission organised an open consultation on
“Directive 2004/48/EC on the enforcement of intellectual property rights:
Challenges posed by the digital environment”. The meeting opened with
initial presentations from Jonathan Faull, Director General of the Internal
Market Directorate General of the Commission, Margot Fröhlinger, Director of
the Copyright Directorate of the Commission and Bryan Cassidy of the
Economic and Social Committee.

The Commission then made a presentation of the not yet final summary of the
consultation on the IPR Enforcement Directive. The consultation generated
165 replies from individual citizens and 297 replies from organisations were
received within the deadline. The main trends were that:

– Member States were divided between wanting the Directive to be updated and
believing that the legislation has not been in place long enough to be
properly analysed. Eight believe that ISP liability should be increased
while seven believe that it should not change;

– Rightsholders are keen to separate liability from the right to impose
injunctions (as a method of circumventing the safeguards in the E-Commerce
Directive, which are restricted to situations where ISPs are subject to
liability for content).

Oddly, the Commission’s view of all of the replies from user
groups was that end users did not like increased ISP liability because of
fears regarding costs (and not the dangers that this creates for privacy,
freedom of expression, net neutrality, innovation and competition)

During the presentations, rightsholder groups variously suggested
comprehensive policing of the Internet by ISPs, extra-judicial blocking and
takedown of content, mass surveillance via deep packet inspection and using
the domain name system to police and “remove” content.

Various consumer and citizens’ organisations, including EDRi, raised a
variety of questions about the approach of the rightholder groups, in

– the appropriateness of permitting, encouraging or coercing
Internet intermediaries to police online communications;

– the extent to which the legitimacy of current copyright law is
definitively broken, as indicated by the apocalyptic levels of infringements
described by the rightholders;

– the wider costs (also for rightholders) for openness and
innovation on the Internet as a result of ISPs being forced into a
“gatekeeper” role;

– the fact that rightholders groups are simultaneously fighting
against measures that would lead to more legal offers, such as a “one stop
shop” for rights clearance and then complaining about the infringements that
are caused by a lack of legal offers;

– the over-reliance on dubious studies on the impact of
infringements, which often use questionable methodology and overlook
numerous credible studies that present a very different picture including
the report from the HADOPI authority itself, which shows that “pirates”
spend the most money on cultural goods;

– the need to address the issue of exceptions and limitations to
copyright to ensure a more balanced and innovative environment.

None of these points were addressed to any significant extent by the
rightholder groups. This, together with the very clear message to the
Commission that work on a revision of the Directive must take account all
the available research, left a very positive impression that the outcome of
the meeting had been a forceful communication of the views of civil society
and a better awareness of the lack of balance of the approach to date.

EDRi response to the IPRED consultation

European Commission web page on IPR enforcement

EDRi study on the side from self-regulation to corporate censorship

(Contribution by Joe McNamee – EDRi)