IPR Enforcement Plan: Blocking, filtering and monitoring via injunction

By EDRi · January 12, 2011

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Deutsch: [Durchsetzungsrichtlinie bei IPR: Sperren, Filtern und Überwachen mittels Verfügung | http://www.unwatched.org/node/2501]

Just before Christmas, the European Commission published its report on
the application of the IPR Enforcement Directive.

The text, while written in fairly neutral terms, does subtly show the
Commission’s plans for the enforcement of intellectual property rights and
the dangers that these hold for citizens’ rights. Two points in particular
stand out – the circumvention of the E-Commerce Directive, in particular to
overturn the ban on imposing a “general obligation to monitor” on Internet
providers, and the intended weakening of the EU’s data protection regime for
the benefit of copyright holders.

A.General obligation to monitor

The text explains that in order to have injunctions work “efficiently, it
could be useful to clarify that injunctions should not depend on the
liability of the intermediary”. As the “no obligation to monitor” obligation
in the E-Commerce Directive is part of the intermediary liability section of
the Directive, this “clarification” in any revision of the Directive would
aim to give Member States the green light to impose monitoring and blocking
obligations on Internet intermediaries.

One example of how this would work in practice can be found in the Belgian
Scarlet/Sabam case, which is currently before the European Court of Justice.
In that case, the lower Belgian court decided that the Internet Provider
Scarlet was obliged to implement software on its network which would block
all “infringing” communications (identified automatically via software) of
sound files transferred via peer to peer over its network.

Commissioner Malmström, who said in May 2010 that the “Commission
has absolutely no plans to propose blocking of other types of content”
(apart from child abuse images) and who promised to “personally very
strongly oppose any such idea” has so far been silent on this issue.

Furthermore, the findings reported in the Staff Working Paper that
accompanies this Report indicate that the currently available laws are not
strong enough to combat infringements of intellectual property rights
effectively, so it proposes deputizing internet intermediaries in an
extra-judicial policing role. “Given intermediaries’ favourable position to
contribute to the prevention and termination of online infringements, the
Commission could explore how to involve them more closely.”

B. Data protection

The Communication also seeks to undermine the fundamental right to privacy
by implying that a “rebalancing” is necessary between the right to privacy
and the right to property, as defined in the EU Charter on Fundamental
Rights. This has been one of the key demands of the content industry, which
argues that industry (that should be involved more closely in the
enforcement of IPR according to the Commission) should have greater rights
to use consumer data in order to police and prosecute their own clients.

The following text is from page 7 of the report:
“National laws implementing the various directives must therefore be
construed in a way that allows a balance to be struck between these rights
in each case in order to guarantee that the provision on the right of
information can protect the rightholders effectively without compromising
rights relating to the protection of personal data.”

The Communication is part of a consultation and replies should be received
by 31 March 2011. All citizens who care about fundamental rights should
respond to the Communication.

Commission Communication – Application of Directive 2004/48/EC of the
European Parliament and the Council of 29 April 2004 on the enforcement of
intellectual property rights (22.12.2010)

SABAM v. S.A. Scarlet, District Court of Brussels, No. 04/8975/A, Decision
of 29 June 2007, published in CAELJ Translation Series #001 (Mady,
Bourrouilhou, & Hughes, trans.), 25 Cardozo Arts & Ent. L. J. 1279 (2008)

Malmström’s promise: “Combating sexual abuse, sexual exploitation of
children and child pornography: the Commission’s proposed Directive”

(contribution by Joe McNamee – EDRi)