27 January 2011

All Quiet On The IP Enforcement Front?


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Intellectual Property Zonephoto © 2008 Robert Nunnally | more info (via: Wylio)

As recently as on 22 December last year the European Commission issued its long awaited report on the application of Directive 2004/48/EC that deals with the enforcement of intellectual property rights (“IPRED”). The report represents a very interesting read and is accompanied by another, no less interesting, paper – the Commission staff working document. I strongly recommend reading those two records or, alternatively, the analysis thereof outlined in this very blog post.

If you are still reading this article, I assume you are definitely aware of the IPRED and I will skip its introduction. And since the above documents almost sound a charge against the Internet and its users, I will limit my explanation only to the Internet relevant issues.

Not surprisingly, the Commission stresses on the difficulties rightholders have been experiencing while pursuing IPR infringers on the Internet. Accordingly, those difficulties are attributable to “the relative anonymity of the Internet” as well as to the fact that the IPRED “does not sufficiently address this constantly growing, serious problem”. The latter appears somewhat inconsistent, since the IPRED equipped rightholders with a set of strong weapons – the so called right of information and the specific injunctive relief. The staff working document refers to the right of information as “an important tool for the rightholders to pursue … IPR infringements committed via the Internet such as illegal file-sharing of protected works through peer-to-peer protocol.” Further, and with respect to the injunctive relief the same document reads “Internet service providers, being the intermediaries between all the users of the Internet, on the one hand, and the rightholders, on the other, are often placed in a compromising position due to the infringing acts of their customers….It results from Member States’ reports that injunctions against intermediaries are used relatively often as the infringers are often unknown.

No doubt, these measures were clearly adapted to bring “intermediaries” (mainly Internet service providers, ISP) down to knees so they eventually provide the rightholders with the personal data of infringers on the Internet. So where are the difficulties?

Hmm, let us think about this one: what used to be the shield that (nearly always) managed to block rightholders’ weapons’ attacks?

Bingo, it is the law on privacy and data protection!

Indeed, the Commission notices that in some member states, pointing out Spain and Austria, ISP are practically not in the position to disclose the relevant information  in infringement proceedings. The reason therefor would often lie in that ISP are under data protection obligations resulting in the erasure of the data they might have previously gathered.

This is the point where the Commission touches the sore spot of the IP enforcement on the Internet – the fairly notorious conflict between the fundamental right to property and that to privacy. The Promusicae landmark decision is quoted as Community law’s requirement to fairly balance those two rights. However, this is followed by a caveat stating that “the European legal framework on the protection of personal data/privacy on the one hand and enforcement of intellectual property rights on the other is neutral, in that there is no rule that would imply that the right to privacy should generally take precedence over the right to property or vice versa” . I understand it like Commission’s reluctance to enter the territory of the Court of Justice of the European Union. What do you think?

Interestingly, but the Commission is very careful and even anxious on data retention. Nevertheless, their statement evidences that the purpose of data retention has never been directed to perpetrators of “serious crimes”, but rather to file-sharers.

A word should be dedicated also to the current absence of harmonized protection through criminal law. The Commission submits the fact that almost all member states provide for criminal measures to protect IPR, but the national definitions and level of penalties vary. That is, in the view of the EC, a “serious obstacle and may hinder the cross-border cooperation between the law enforcement agencies.”

All in all: the report has many bad news to tell. What could be its impact on the Internet users? Well, I guess that the Commission will initiate a new legislation to deal with the points and outcomes made in the report. Consequently, we should prepare to face more stringent civil sanctions, data protection undermining information requests and harmonized criminal measures.

Will they be capable to fight “Internet piracy”? I doubt it, unless the entertainment industry comes up with suitable lawful offerings. It is odd, but even the report admits that “file-sharing of copyright-protected content has become ubiquitous, partly because the development of legal offers of digital content has not been able to keep up with demand, especially on a cross-border basis, and has led many law-abiding citizens to commit massive infringements of copyright and related rights in the form of illegal up-loading and disseminating protected content.”

In the end, is there anything that Internet users can do in order to prevent the impact of the report? Yes, there is! You can all participate in the consultation the Commission set up on the report.

Raise your voice, because it is not all quiet on the IP enforcement front!

 

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