Parliament’s work on copyright enforcement – not worth copying

By EDRi · March 25, 2015

The European Parliament’s Committee on Culture and Education (CULT) adopted an Opinion on Intellectual Property Rights (IPR) enforcement, in response to the European Commission’s Communication entitled “Towards a renewed consensus on the enforcement of Intellectual Property Rights: an EU Action Plan”.

It starts by offering support for “the” “follow the money” approach. The only problem here is that there is no “the” follow the money approach. The Commission’s Communication does not describe it, referring instead to “a” follow the money approach, that could be used to deprive “commercial scale” infringers of revenue streams. This might be an expansion of the US model, where US companies like Visa, MasterCard, PayPal and Google (who have been lobbying extensively for this) would act as a world police, removing services from companies around the world that are accused of breaching US copyright or trademark law. It might also be a rule-of-law based approach, whereby European courts could apply orders requiring payment or advertising services to withdraw payments on a case-by-case basis. It is not clear whether the Culture Committee does not know or does not care that “the” approach it supports does not exist, or could mean so many different things.

The report then goes on to mash together two different studies – one on “IP intensive industries”, whose methodology has been comprehensively shown to be inadequate, and one on “cultural and creative sectors” which is widely quoted but rarely referenced, either on the Commission or Parliament websites. Also its methodology and assumptions have shown to be dubious.

Worries are also expressed about the physical dangers of digital infringements, with Parliamentarians concerned about the potential health and safety risks associated with commercial scale IPR infringements, particularly among the younger generations growing up in the digital era.

The Opinion also places huge hope in private companies suddenly deciding that they are motivated, without any possible anti-competitive reasons, to enforce IPR. The Committee supports the Commission’s call for “due diligence” in the supply chain. The issue of privatised law enforcement is so simple in the eyes of the Committee that this can be described in one sentence. The approach covers the supply of physical goods and of digital goods and in every part of the supply chain, including internet companies and even end users. This approach is so enthusiastically supported that, having demanded this once, the Opinion then demands it again, in the context of voluntary “self-regulation” of everyone, including end users.

It seems just a little fanciful that ordinary citizens (“end users”) will develop “due diligence” and “self-regulatory” mechanisms. It seems equally fanciful that private companies will spontaneously do this in a way which is simultaneously proportionate, competitively neutral, not counterproductive and effective – and that this unlikely coincidence is going to remain stable in a digital environment which is constantly changing.

Finally, the Opinion does recognise the dangers of excessive IP enforcement measures and calls for remedies to be put in place for “platforms that are adversely affected by any measures”. Citizens that are adversely affected are, however, not mentioned.

The Opinion was adopted with 20 votes in favour, 9 against and two abstentions.

Opinion of the Committee on Culture and Education on “Towards a renewed consensus on the enforcement of Intellectual Property Rights: an EU action plan” (2014/2151(INI)(05.03.2015)

IPR intensive industries: Contribution to economic performance and employment in the EU, Industry-level analysis report, September 2013

EPO and OHIM publish misleading report on intellectual property rights intensive industries in EU economy (01.10.2013)

Building a digital economy: The importance of saving jobs in the EU’s creative industries, March 2010

A note on TERA’s “The economic contribution of the creative industries to EU GDP and employment” (23.10.2014)

(Contribution by Joe McNamee, EDRi)