It emerged last week that the European Comission is changing the timings for the IPR Enforcement directive (IPRED) review.  At a conference organised by DG Markt, the Commission said that the consultation on the directive will be extended. The move is significant, because DG Markt was scheduled to unveil the revised directive in September, with the intention of getting it adopted next year. That timetable appears to have been torn up.

The conference was  entitled “Enforcement of intellectual property rights: the review of Directive 2004/48/EC”.   The extension to the IPRED consultation was announced  by Pierre Delsaux, deputy director general. Mr Delsaux  said   ‘the reason for the conference today is that we want to extend the public consultation on the review’ of IPRED.

 Details of how the Commission plans to run the IPRED review extension were given by Jean Bergevin, who heads up the Enforcement Unit (and who, in spite of his name, is a Brit). He said he wants to test out ideas with all stakeholders.  That will include a new questionnaire, focussing on the key issues arising out of the first consultation of last year.

 The problem with these kinds of follow-up questionnaires is of course, that they tend to be self-referential, and if the rights-holders set the agenda, as they usually do, then the questionnaire tends to home in on what they want. 

There will also be an impact assessment, although Mr Bergevin rightly pointed out the lack of data.

It means that the Commission will not be able to meet its previously announced timetable. DG Markt wanted to  be ready to  present  a revised  IPRED   to the European Parliament in September, so that it could begin its journey thruogh the legislature. An optimistic DG Markt wanted the revisions adopted  in 2013. See my previous article  Barnier dreams of copyright consensus by 2013

It does seem as though the controversy over ACTA has set back the timetable, although that was not stated officially.

 The conference, as is usual for enforcement events,  was clearly divided between the rights-holders and the internet industry.  As with these conflict over  intermediary liability.

 Johannes Studinger, of UNI-MEI, a confederation of trade unions reprepsenting people who work in  the film industry, called for credit card companies to take action on copyright:

 “We believe that the enlargement of liability is very very useful. Passive enrichment from infringement is not justifiable.  Credit card companies , for instance, they know quite well actually about your behaviour… they   say we didn’t infringe, we  are not responsible, but, bloody hell (sic) if you make money out of it, then it’s a problem”.

The Commission had been consulting on such actions by credit card companies in the original review. It will be interesting to see how this is handled in the new questionnaire.

 The opposing view  of intermediary liability was taken up by Joe McNamee of Edri. Mr McNamee highlighted how Google enforces the American copyright law known as the  DMCA in Europe, and posed the question “do we want a situation in Europe where US intermediaries impose US law on European start-ups?”

Jean Bergevin’s personal position  is difficult to read. Unlike the Commission’s other copyright chiefs, Mr Bergevin is not an intellectual property lawyer, but he has spent the last few years as guardian of the E-commerce directive.

 He reminded the audience of the objectives of the IPRED directive, noting that measures should be ‘fair and equitable’ as well as ‘effective, proportionate and dissuasive’. He also said: “as an economist, I know there is no such thing as a free lunch”.

You may re-publish my article under a Creative Commons licence, but you should cite my name and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, , EU Commission re-sets clock for IP enforcement review,   www.iptegrity.com 30 April  2012 . Commercial users - please contact me

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