For those who missed it, the European Commission consultation on IPR enforcment (IPRED directive) closed yesterday. It’s a very odd closing date, being Easter Sunday and a public holiday throughout the EU, and also being the day before April Fools day. Does it make you suspicious? One quick glance at the IPRED consultation questionnaire should tell you – it is seriously problematic.
Firstly, the length - it is such a long, complex document, that only a corporate lawyer will have the skill and the will to complete it.
Secondly, the perspective – it is entirely written from the perspective of the major rights-holders with a significant focus on the entertainment industry Internet agenda.
Thirdly, the substance – 3 strikes, website blocking, ISP policing of the Internet – it’s all in there, but some of the code-words have changed.
Whilst the accompanying communication pays lip-service to SMEs, the form is impossible for them. I did send it to a friend of mine who runs an UK-based SME fashion business and has attempted legal action on the basis of rights infringement (of her copyright) against a major, French-owned company. The outcome is that she (who feels she has been wronged) has been totally silenced by the other side, who simply have more money to pay the lawyers. I thought her story would be of interest to the Commission, which says that it wants to hear from SMEs and her story illustrates the difficulty of real-life copyright enforcement for small businesses that never appears in the policy arena. But quite frankly, she did not even know where to begin with this form.
All of the questions are addressed to rights-holders and ask only for their viewpoint. There is no place for non-rights-holders, who could be ISPs, to write a response. So for example, a whole raft of questions asks whether you have been able to successfully obtain information from intermediaries. What that means is it’s asking major rights-holders if they’ve been able to obtain names of alleged infringers from the ISPs.
It also asks whether rights-holders have been told they must get a court order before the ISP will supply information or block content. There is a sense in which it twists the outcome of the Telecoms Package ( see Telecoms Package: the verdict ) - ok, you need a court ruling, tell us if we can simplify that process for you.
However, it does not canvass the views of the ISPs or the websites who could be subject to such orders – nor does it seriously solicit the view of Internet users.
Indeed, using deceptive language, the European Commission is offering rights-holders a fresh platform to set out their enforcement agenda. For example:
Is it possible for a right holder to use the notification to ask an intermediary to impede access to goods or services that he considers to be infringing his IPRs and that are offered through the services of this intermediary?
Here we see new language ‘impede access’ creeping in. ‘Impede access’ could mean blocking access to websites and payment services. There are several questions concerning injunctions that follow up on this very issue. It could also mean blocking a user’s Internet access, as in the following question that seems to me to be asking for the copyright industries to set out 3 strikes measures by another name:
In cases of notorious infringers of intellectual property rights, do you consider that there should be particular consequences (i.e. including e.g. suspension of the infringer's/alleged infringer's account) resulting from a notification mechanism?
[Footnote]: For the purposes of this survey, "notorious infringers" are considered as infringers who have been the subject of a number of procedures based on the notification mechanism.
This really gives a sensation of deja vue to anyone who followed the ACTA debate. Indeed, it’s interesting to see the ACTA-like language in this consultation.
What surprises me, is why the Commission would want to start this whole debate over again, after it got so much egg on its face over ACTA? It would be an incendiary move to make any legislative proposal along these lines before the next European Parliament elecions. As I've previously suggested, this may end up going nowhere.
For the background to EU legislation on copyright enforcement, see my book The Copyright Enforcement Enigma Internet politics and the Telecoms Package
For ACTA and that footnote, check out my forthcoming book A Copyright Masquerade How Corporate Lobbying Threatens Online Freedoms.
This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, you should cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, European Commission copyright consultation is no April Fool , in www.iptegrity.com, 1 April 2013 . Commercial users - please contact me.