EDRi responds to IPR Enforcement consultation

By EDRi · April 6, 2011

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Deutsch: [EDRi-Stellungnahme zum Urheberrechts-Konsultationsverfahren | http://www.unwatched.org/EDRigram_9.7_Konsultation_zur_Durchsetzung_der_Rechte_des_geistigen_Eigentums]

European Digital Rights has submitted on 31 March 2011 its response to the
European Commission’s consultation on the implementation of the IPR
Enforcement Directive.

The response examines the claims made by the Commission, the evidence (or
lack thereof) for its assumptions and the lessons that it draws and fails to
draw from the experience of European citizens with the implementation of the
Directive. The first section of the response deals with the overall approach
of the Commission and its reaction to what it calls “ubiquitous”
unauthorised filesharing online. EDRi questions whether many of the
assumptions regarding the “cost” of such filesharing are correct,
particularly with a growing body of research indicating that the impact is
either zero or close to zero.

This leads on to a more fundamental question of the legitimacy of current
copyright legislation. If breaches really are “ubiquitous,” is a response
which is mainly or wholly based on repression either proportionate or
effective? With equally ubiquitous problems concerning the cost, the format
and the availability of audiovisual material, would it not be better to
properly service the market rather enforce respect for a broken market?

With regard to criminal law and unauthorised access to audiovisual content,
EDRi argues that the Commission’s current approach of treating
“counterfeiting and piracy” as one phenomenon, as if the causes and
solutions for counterfeit medication are the same as for private music
downloading, is simply wrong. Indeed, worst than that, treating both as the
same can only result in either counterfeit drugs being subject to unduly
weak countermeasures or unauthorised access to audiovisual material being
treated disproportionally harshly.

The response pays particular attention to the vague and dangerous assertion
that the fundamental right to privacy can somehow be re-balanced against the
right, included in the Charter of Fundamental Rights, to property. The
response points out that a balance between rights can never be done in the
abstract, rendering the whole approach by the Commission meaningless. It
goes on to point to the UNESCO Convention on Protection and Promotion of the
Diversity of Cultural Expressions (which the EU collectively and almost all
Member States individually have signed up to), which, in article 2, explains
that cultural diversity can be protected and promoted only if human rights
and fundamental freedoms, such as freedom of expression, information and
communication, as well as the ability of individuals to choose cultural
expressions, are guaranteed.”

In its report, the Commission also subtly mentions that “it could be useful
to clarify that injunctions should not depend on the liability of the
intermediary”. What this means in practice is that courts could ignore the
provisions of the E-Commerce Directive on “mere conduit” (regarding access
to illegal material) and on the imposition of a “general obligation to
monitor”. The Commission’s view – and the view that it has given to the
European Court of Justice in the Scarlet/Sabam case – is that national
courts may (and should) impose monitoring, blocking and filtering
obligations on Internet service providers and that the E-Commerce Directive
should not prevent them from doing this. The Commission’s analysis fails to
acknowledge, let alone address, how this would be compatible with the
European Charter of Fundamental Rights – the same Charter that it so eagerly
uses to defend the weakening of the fundamental right to privacy.

The EDRi response concludes by listing a set of issues to be addressed in
any impact assessment used to justify a re-opening and extension of the IPR
Enforcement Directive.

EDRi response to IPRED Consultation (31.03.2011)

Report on the enforcement of intellectual property rights (COM(2010) 779)

Analysis of the application of Directive 2004/48/EC on the enforcement of
intellectual property rights in the Member States (SEC(2010) 1589)

(Contribution by Joe McNamee – EDRi)