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Deutsch: Durchsetzungsrichtlinie bei IPR: Sperren, Filtern und Überwachen mitt...

Just before Christmas, the European Commission published its report on the application of the IPR Enforcement Directive.

The text, while written in fairly neutral terms, does subtly show the Commission's plans for the enforcement of intellectual property rights and the dangers that these hold for citizens' rights. Two points in particular stand out - the circumvention of the E-Commerce Directive, in particular to overturn the ban on imposing a "general obligation to monitor" on Internet providers, and the intended weakening of the EU's data protection regime for the benefit of copyright holders.

A.General obligation to monitor

The text explains that in order to have injunctions work "efficiently, it could be useful to clarify that injunctions should not depend on the liability of the intermediary". As the "no obligation to monitor" obligation in the E-Commerce Directive is part of the intermediary liability section of the Directive, this "clarification" in any revision of the Directive would aim to give Member States the green light to impose monitoring and blocking obligations on Internet intermediaries.

One example of how this would work in practice can be found in the Belgian Scarlet/Sabam case, which is currently before the European Court of Justice. In that case, the lower Belgian court decided that the Internet Provider Scarlet was obliged to implement software on its network which would block all "infringing" communications (identified automatically via software) of sound files transferred via peer to peer over its network.

Commissioner Malmström, who said in May 2010 that the "Commission has absolutely no plans to propose blocking of other types of content" (apart from child abuse images) and who promised to "personally very strongly oppose any such idea" has so far been silent on this issue.

Furthermore, the findings reported in the Staff Working Paper that accompanies this Report indicate that the currently available laws are not strong enough to combat infringements of intellectual property rights effectively, so it proposes deputizing internet intermediaries in an extra-judicial policing role. "Given intermediaries' favourable position to contribute to the prevention and termination of online infringements, the Commission could explore how to involve them more closely."

B. Data protection

The Communication also seeks to undermine the fundamental right to privacy by implying that a "rebalancing" is necessary between the right to privacy and the right to property, as defined in the EU Charter on Fundamental Rights. This has been one of the key demands of the content industry, which argues that industry (that should be involved more closely in the enforcement of IPR according to the Commission) should have greater rights to use consumer data in order to police and prosecute their own clients.

The following text is from page 7 of the report: "National laws implementing the various directives must therefore be construed in a way that allows a balance to be struck between these rights in each case in order to guarantee that the provision on the right of information can protect the rightholders effectively without compromising rights relating to the protection of personal data."

The Communication is part of a consultation and replies should be received by 31 March 2011. All citizens who care about fundamental rights should respond to the Communication.

Commission Communication - Application of Directive 2004/48/EC of the European Parliament and the Council of 29 April 2004 on the enforcement of intellectual property rights (22.12.2010)
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0779:FI...

SABAM v. S.A. Scarlet, District Court of Brussels, No. 04/8975/A, Decision of 29 June 2007, published in CAELJ Translation Series #001 (Mady, Bourrouilhou, & Hughes, trans.), 25 Cardozo Arts & Ent. L. J. 1279 (2008)
http://www.cardozoaelj.net/issues/08/case001.pdf

Malmström's promise: "Combating sexual abuse, sexual exploitation of children and child pornography: the Commission's proposed Directive" (6.05.2010)
http://www.meldpunt-kinderporno.nl/files/Biblio/Speech-Malmstrom-Comba...

(contribution by Joe McNamee - EDRi)