The Closing of the Net  "original and valuable"  Times Higher Education

The European Commission is consulting on the enforcement of intellectual property rights and copyright. Hold tight for more debate on website blocking, domain seizure, filtering, account termination .... and a new attack on 'mere conduit'.

With the 16 April deadline looming for responses to the European Commission's consultation on enforcement of intellectual property rights, the question of content blocking is rearing its head once again. The online world is clearly the target, even though the scope of the existing law is much wider. Reading between the lines, the influence of the main stakeholder interests such as the music and film industries, and luxury goods manufacturers, can be seen. Given that this is a heavily polarised and toxic issue, is the European Commission going about this in the right way?

 At the centre of the consultation is online enforcement of copyright. The questions reveal the fingerprints of the large rights-holders, and the kinds of measures that they have been campaigning for over the past few years.

There is clearly pressure for changes to intermediary liability, and more than a hint of swingeing measures that could follow. Blocking of websites, permanent termination of a domain, de-indexing websites, discontinuing payment or advertising services, are all on the rights-holders shopping list.

Questions such as: " Do you believe that intermediary service providers should play an important role in enforcing IPR?" leave little room for doubt as to the direction of the Commission.

The format of the questionnaire is especially problematic. The questions are all multiple choice. Respondents are expected to answer "yes, or no, or no opinion". It's predictable that the ISPs and content platforms will answer one way and the rights-holders the other way, according to their business interests. For example, for  question cited above, the ISPs will answer 'no' and the rights-holders will answer 'yes'.

The questionnaire tries to reinforce this question with the following: "Should the Directive explicitly establish that all types of intermediaries can be injuncted?" For this one, the ISPs will again answer 'no' and the rights-holders will answer 'yes"

The multiple choice format is therefore rather useless for policy analysis precisely because it preserves the stalemate. There's been no change in those positions over the past 10 years so this simplistic formulation is unlikely to elicit any information on which a policy-maker can build.

What policy-makers don't need is a lot of statistical data telling them how many lobbyists said 'yes' or 'no'. Instead, they need to have a good understanding of the policy issues, as they have evolved over recent years, with all the nuances that affect the different stakeholders.

The lack of contextualisation is especially problematic when it comes to the intricacies of the law as it stands. For example, this question, targetting both ISPs and rights-holders:

'Should the Directive explicitly establish that no specific liability or responsibility (violation of any duty of care) of the intermediary is required to issue an injunction?'

This is referring to the E-commerce directive, Article 12 provision known as the 'mere conduit' provision which establishes the exoneration of liability for ISPs. It is a point of law that is argued in case law around Europe. The question twists together the notion of 'mere conduit' with the requirement of an injunction to enforce copyright. A simple 'yes - no' answer is frankly not helpful to constructive policy-making.

Answering 'no' to certain questions may have the unintended consequence of justifying new and more restrictive laws. This has been highlighted by EDRi. For example, consider this question: Do you think that the existing rules have helped effectively in protecting IP and preventing IP infringements? If the existing laws haven't helped, then the Commission would interpret 'no' as meaning that the current law is ineffective, which could lead it to propose a strengthening of the enforcement provisions. In this context, strengthening means more blocking, filtering, take-downs etc.

There are a couple of exceptions to the multiple choice, where free text comment is invited. However, a character limit is applied.

For example, there is an invitation to comment in free text "on the role of intermediaries in IPR enforcement and the prevention of IPR infringements". De-coding the question, it's about the role of ISPs and content platforms in taking down content, blocking and filtering, of music, film and other files.

The limit for the answer is 3000 characters, which is just under 500 words or around one page of A4. Given the tri-partite nature of the political problem, never mind the technology, this is simply going to result in an answer that is unhelpful for policy-making.

Bearing in mind these complexities, please tell me, in 500 words, how you would block copyrighted music files?

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European Commission: Public consultation on the evaluation and modernisation of the legal framework for the enforcement of intellectual property rights Responses close on 16 April.

In light of the 23 June UK referendum on whether to remain in the EU, or leave, I feel I should put something here regarding my own position. Whilst this article is critical of the Commission, I am a supporter of the EU, and believe that the UK should remain in it. I see it as a sign of a healthy democracy that I am able to write critically about the Commission and other EU policy-makers, and that it is possible for people like me to call those policy-makers to account. With all its flaws, I think that European policy-making enables  public input in ways that national  Parliaments, notably in the UK, do not. There are of course, places where the EU is not transparent and it is the role of those who watch policy to highlight those places and throw sunshine onto them. And please be aware,  that just because elements of the EU are not transparent, that does not imply that national Parliaments are transparent. That would be a false logic. Therefore, when I offer critical feedback to the Commission, as I do here, I hope that it will be taken as such, and is not interpreted as an anti-EU position, which it is not.

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This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2016,  EU wants to know how ISPs can block music files in 500 words,  in Iptegrity.com, 31 March  2016. Commercial users - please contact me.

 

If you like this article, you might also like my latest book The Closing of the Net which discusses corporate influences over EU policy. It has three chapters on copyright including coverage of web blocking litigation, and the intriguing case of Megaupload.

 

 

 

 

 

 

The Copyright Enforcement Enigma tells the story of the 2009 Telecoms Package and how the copyright industries tried to hijack it.

'accurate and absorbing account of the story of the Telecoms Package' -Journal of International Commercial Law and Technology

'...a must read for those interested in knowing in depth about copyright enforcement and Internet.' -Journal of Intellectual Property Rights.  

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Copyright Enforcement Enigma launch, March 2012

European Parliament launch for Copyright Enforcement Enigma

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Iptegrity.com is the website of Dr Monica Horten, European expert on Internet policy and Visiting Fellow at the London School of Economics & Political Science. She is an independent expert on the Council of Europe Committee on Cross-border flow of Internet traffic and Internet freedom (MSI-INT). She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy. Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

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