IP rights enforcement laws criticised by rights holders but supported by ISPs, European Commission says

Out-Law News | 14 Jul 2011 | 10:46 am | 3 min. read

EU laws on the enforcement of intellectual property (IP) rights should set out internet service providers' (ISPs) responsibilities for combating online piracy, copyright holders have told the European Commission.

In May the European Commission announced that it would review the IP Rights Enforcement Directive in spring 2012. The current laws do not adequately combat online infringement of IP rights, the Commission had said.

In a summary of responses it received to a consultation on the application of the IP Rights Enforcement Directive, the Commission said that rights holders had criticised the laws and expressed desire for them to be amended. 

The Directive requires all EU member states to apply effective, dissuasive and proportionate remedies and penalties against those engaged in counterfeiting and piracy.

"The majority of right holders and collecting societies demanded a greater involvement of internet service providers and other intermediaries, identifying them as key actors in combating IPR infringements in the digital world," the Commission's summary (22-page /81KB PDF) of responses to its consultation said.

"While most of the right holders were calling for a closer cooperation with intermediaries, only a few of them actively advocated the implementation of filtering / monitoring technologies or a duty of care principle (e.g. for intermediaries that actively use, present, organise or modify third parties' content for commercial purposes)," the summary said.

A few copyright owners believe that the Directive should be changed so ISPs could be held responsible when copyright infringers use their service to illegally access copyrighted material, the Commission's report said.

Under the EU's E-Commerce Directive ISPs are not liable for users' illegal activity providing they are only facilitating a users' request for information.

Rights holders also claimed that there should be stricter rules governing online piracy. The rights holders claimed the IP Rights Enforcement Directive currently does not provide adequate legal protection to tackle infringing behaviour which jeopardizes innovation and investment, the Commission report said.

"The Committee on Legal Affairs of the European Parliament noted that it should be examined whether specific IPR-infringements (e.g. copyright) in the online world require particular measures since the infringement normally does not involve a tangible good," the Commission report said.

"An issue that was raised by several rightholders and a few member states ... was the need for improved cross-border enforcement," the report said.

In the UK a recent review of IP law proposed establishing a "digital copyright exchange" where copyright rights owners could licence the use of their works to others. The European Commission is expected to announce proposals for a new online copyright licensing system later this year.

Rights holders said that they could not support systems that would supply legal copies of their works until laws enforcing their rights were strengthened, the Commission's report said.

A number of ISPs, telecoms companies and most individual EU citizens that responded to the consultation said that a lack of online access to legal copies of works was "one of the main causes for online piracy", the Commission's report said.

ISPs, some EU member states and citizens said there is not enough evidence that the IP Rights Enforcement Directive needs to be changed, according to the Commission's summary of their responses.

"Especially ISPs argued that a premature introduction of stricter enforcement rules would have a chilling effect on innovation and undermine consumers' confidence in digital products," the Commission's report said.

"A number of individual contributors, furthermore, took the view that there was no evidence that file sharing has any overall detrimental effect. On the contrary, in the view of these respondents piracy would even have the potential to boost sales," the report said.

ISPs, other online intermediaries and some member states also argued that altering the laws on enforcement of IP rights would create greater legal uncertainty.

Strengthening enforcement measures could contradict the provisions of the E-Commerce Directive that set out intermediaries are not normally liable for users' behaviour and which also prohibit ISPs generally monitoring activity on their service, the ISPs said, according to the Commission's report.

Most citizens and consumer protection groups that responded to the Commission's consultation said that strengthening the regulations around IP rights infringements could impinge on people's free speech and privacy rights, the report said.

"Filtering of content and monitoring traffic on the internet were perceived as threats to fundamental rights (freedom of speech, right to privacy) or even censorship and therefore clearly rejected," citizens and consumer groups argued, according to the report.

Both the right to freedom of speech and to a private life are guaranteed under the European Convention on Human Rights.

Individuals also said that file-sharing should be legalised and that the free exchange of copyrighted material "would help spread culture as well as increase creativity" and not adversely affect industry or society, according to the European Commission's report.

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