The European Commission's Blueprint for Intellectual Property rights is out today. It has the expected attempts on ISPs 'at source' and eBay. And there is a distinctly unpleasant sting in its tail.
The European Commission released its blueprint for intellectual property enforcement today, and as predicted, it targets the Internet. The real intention of the document is only very thinly veiled. The European Commission is signalling a move against Internet intermediaries in all forms - that is ISPs, ecommerce platforms and web hosts, and will try to get legislation at European level which will force them to block content or sanction their customers.
The 'blueprint' is released under the name of the French Sakrozy-ite Commissioner Michel Barnier. And his recently-appointed ex-IFPI head of copyright, Maria Martin-Prat, is now firmly in her seat. On that basis, a head-on attack on Internet companies and users was perhaps only to be expected.
The unexpected proposal concerns the European Observatory on Counterfeiting and Piracy. This institution was set up by stealth to monitoralleged piracy and counterfeiting activity. However, it is now being hit by a large dose of mission creep, if I read this blueprint correctly.
On copyright, the European Commission is pushing to make Internet service providers liable for sanctioning users and blocking content. That's what the words ‘foster co-operation' and ‘tackling infringements at source' mean. This comes in spite of the recent collapse of talks which were held in secret and had political legitimacy. This move will come in the context of a review of the IPR Enforcment directive (IPRED) in a year's time.
"... the Commission will identify ways to create a framework allowing, in particular, combating infringements of IPR via the internet more effectively. Any amendments should have as their objective tackling the infringements at their source and, to that end, foster cooperation of intermediaries, such as internet service providers, while being compatible with the goals of broadband policies and without prejudicing the interests of end consumers."
On trademarks, the European Commission wants to use a dodgy agreement which looks to have been forced onto Internet companies as the basis for attacking eBay and other eCommerce platforms. This is the so-called Memorandum of Understanding (MoU) signed on 4 May this year. The signatories were eBay and Amazon on the one hand, and a very long list of copyright holders and trademark owners on the other.
The agreement has no legal standing, it is not even on Commission headed paper. Indeed, it looks more like a wedding invitation than a business document.
But the Commission now says it wants to use this as a vehicle for so-called "voluntary" measures. For that, we can read getting eBay to pressure its users or be sued by the luxury goods and cosmetic manufacturers.
But here's what I think could be the real sting in the tail. Whilst it has been outside the radar of most watchers, this European IPR Enforcement Observatory has been infiltrated by lobbyists for the Motion Picture Association, the IFPI and other rights-holders. They now run its legal sub-group. This is evident from a quick glance at the names of sub-group members which are in the public domain. What's concerning is how the Commission appears to be relying on this sub-group for advice.
Under the Commission's new IPR blueprint, it is proposed to extend the remit of the Observatory to :
"design and organisation of public-awareness campaigns, the provision of appropriate training measures for enforcement authorities, conducting research on innovative enforcement and detection systems that on the one hand allow licit offers to be as innovative and attractive as possible and on the other allow for more effective enforcement against counterfeiting and piracy (e.g. traceability systems), and the coordination of international cooperation on capacity building with international organisations and third countries."
That could be read as developing online surveillance systems, and working out how they can be used to block content and transmissions. I mean, how does a detection system allow for legal offers to be as innovative as possible? The reference to 'licit offers' is the give-away that this is about the Internet.
It also means that an unelected and unaccountable body, without even the requirement to adhere to a civil service code, will be responsible for designing and developing IPR and copyright policies and implementing them.
The Observatory is to be given these extended roles by means of a Regulation from the European Commission - that Regulation is not yet available online for scrutiny.
The European Commission concludes with "the challenge lies in reconciling IPR enforcement in the digital environment." The Commission should try turning those words around: the challenge lies in reconciling old business models to the digital environment without creating a system of detection and surveillance.
The French Media are reporting that the Commission is planning some form of website blocking legislation, and the the filtered Internet is in view.
The correct attribution for this article is: Monica Horten (2011) Red alert! Europe's IPR Blueprint targets Internet http://www.iptegrity.com 24 May 2011 .
This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed.