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Deutsch: Diskussionen im EP zur Durchsetzung des geistigen Eigentumsrechts
The recent votes in the Industry and Internal Market Committees of the European Parliament (who are providing Opinions to the responsible Committee - the Legal Affairs Committee) have given a good insight into the main battle lines as the Parliament reaches the final stages of adopting its non-legislative report on IPR enforcement. These can be broadly categorised as follows:
1. Data Protection
Efforts are being made to downgrade citizens' fundamental right to privacy through amendments to the Gallo Report. There were two amendments of this type in the Internal Market Committee, one of which was rejected and the other of which was withdrawn. We are already seeing widespread breaches of personal data through online collection of IP addresses, unauthorised "warning" letters to consumers and, more recently, a plan by UK ISP Virgin Media to carry out widespread "deep packet inspection" surveillance of their networks to analyse possible unauthorised use of music. It is to be hoped that the European Parliament will see that the rule of law will hardly be reinforced by adopting texts seeking to encourage and defend such activities.
2. Criminal sanctions for IPR infringement
The Council of Ministers has proposed criminal sanctions for "counterfeiting and piracy", without any indication of the scale of the infringements which would attract such penalties. Similarly, the draft Legal Affairs Committee report prepared by Ms Gallo (EPP, France) asks the Commission to put forward a new Directive on criminal sanctions.
3. Confusion of unauthorised filesharing and counterfeiting
There are only two possible outcomes of confusing life-threatening counterfeit medicines or fraudulently sold products on the one hand and private individuals sharing content on the other. Either the fight against counterfeiting will be weakened, weighed down by being conflated with an innocuous activity, or private consumers will be increasingly treated like organised criminals.
4. "Cooperation" and "self-regulation"
Coercion of ISPs, as described in paragraph 20 of Ms Gallo's draft report, is a major danger for the openness of the Internet in Europe and globally. That text essentially says to ISPs - "either impose policing measures of your own choice, or we will impose them by law".
This intention behind this coercion is clearly shown by the leaked "digital chapter" of ACTA. That text suggests that ISPs should introduce "policies" such as disconnection of alleged infringers or lose the legal certainty offered by existing "safe harbours" from liability. These policies would be imposed outside the democratic process, beyond the reach of the necessary restrictions placed on governments and the EU by the European Convention on Human Rights and the Charter of Fundamental Rights and would facilitate the growth of an anti-competitive non-neutral Internet in the European Union.
5. Demands for immediate legislation
The IPR Enforcement Directive is currently being assessed. It is very obvious that this process should be allowed to be completed and a thorough investigation of the outcomes must be undertaken before any further legislation should be imposed on European citizens and European business. That said, with an overlap of Commission personnel between those working on ACTA and those working on the report on the implementation and enforcement of the IPR Enforcement Directive, we should not expect much from that report.
6. Bureaucratic measures to slow down reform of licensing and access to content
It is essential to take every possible action to ensure the introduction of the most open, transparent and functional licensing regime possible in Europe. Amendments arguing for new impact assessments, reviews of whether all sectors would benefit from wider availability of their products appear to have no motivation other than to slow down availability of legal content, thereby creating problems for IPR enforcement. Several such amendments have been adopted in the Internal Market Committee recently.
7. General, directionless statements about the cost of counterfeiting and/or unauthorised filesharing.
The rash of directionless amendments making general statements regarding the scale of two very different, conflated problems undermines the credibility of the Parliament's work on these issues.
8. Other issues
Efforts are being made to create support for the proposed new Observatory as (yet) another creator of soft law. This was made quite clear by the Council Conclusions on IPR enforcement (paragraph 33) which calls for the Observatory to "pay special attention to the compilation of best practices in public and private sectors and codes of conduct in private sectors". This is quite clearly not the role of an "observatory" and also risks feeding into the "self-regulation" dangers mentioned above. The Industry Committee adopted an amendment aiming specifically at stopping this development. It remains to be seen whether the Legal Affairs Committee will take this approach.
Draft Legal Affairs Committee report (13.01.2010)
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+CO...
Council Conclusions on IPR Enforcement (1.03.2010)
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/intm/...
EDRi-gram 8.4: EP: Draft reports on IPR enforcement published (24.02.2010)
http://www.edri.org/edrigram/number8.4/ep-ip-enforcement-report
(Contribution by Joe McNamee - EDRi)