With the upcoming revision of the 2004 “Intellectual Property Rights” Enforcement Directive (IPRED), the European Union is getting ready to toughen up the war on sharing of culture in the digital environment. The Member States, gathered in the EU Council, have set up a working group to work on the revision of IPRED. An internal document dated February 4th clearly suggests that the Council is also taking the side of the patent, trademark and copyright lobbies, who want to push for even more extremist measures to deal with online copyright infringements. If nothing is done to stop them, freedom of communication on the Internet, the right to privacy and access to culture will be durably undermined in the name of baseless policies.
As the Commission gets ready for its new offensive on sharing through the revision of IPRED with the launch of a consultation on its application report of IPRED, EU Member States are also getting to work. The Presidency of the EU Council, currently chaired by Hungary, has sent a questionnaire to Member States to get a sense of their position of the revision of IPRED. The way the questions are framed shows a clear bias in favour of a more extremist approach than the one adopted in 2004, which is already much criticized for its noxious effects on free speech, privacy, access to culture and innovation. Quite shockingly, the document asserts that it is “more instrumental to keep discussions at experts level, considering that, the political objectives in this field being sufficiently clear, no further political guidance seems to be called for at this stage“.
After the recent adoption of the Gallo report by the European Parliament, the Commission and the Council are pushing for increased repression, even after the many criticims formulated against ACTA. A new IPRED could go much further than ACTA on a number of points:
THREATS ON ONLINE FREE SPEECH AND ACCESS TO CULTURE: The questionnaire asks whether IPRED should include new provisions on law enforcement in the digital environment11.1. Do you consider that IPR infringements over the Internet pose a problem that the current toolbox of Directive 2004/48/EC (Enforcement Directive) is not entirely suitable to handle?. Clearly, the favoured strategy could be the same as the one defended by the Commission in its report on the application of IPRED: Putting legal pressure on hosting providers and Internet Service Providers (ISPs) to force them to police their networks, for instance through Internet filtering schemes21.3. Is there a need to lay down rules regarding the liability of online service providers (and limitations thereto) in the Enforcement Directive beyond those already existing in Directive 2000/31/EC (Directive on electronic commerce)? If yes, is there a need to define the term “online service provider” in the legal framework of intellectual property?. There is an obvious interest in going after online services that facilitate infringements or against advertisers funding such services (such services include search engines, bittorrent trackers, or other websites disseminating cultural works without rights holder’s prior authorization)31.5. Taking into account the jurisprudence of the European Court of Justice, is there a need to amend the existing legal framework relating to the liability or legal obligations of online service providers (including search engines and online market places) whose services are directly used in infringing activities (not necessarily on a commercial scale)? If yes, which legal instrument should be amended (the Directive on electronic commerce, the Enforcement Directive or the Trade Mark Directive)?
1.6. In the case of online copyright infringements, does your law provide for the possibility of taking measures against websites facilitating such infringements or against advertisers financing such websites? Does your law provide for specific legal measures against P2P file sharing? Do you see a need for such measures to be included in the Enforcement Directive?. In a section on intermediaries, the Presidency asks whether IPRED should allow judges to order preventive measures against online services and ISPs even before any activity has been declared illegal4It asks whether interlocutory injunction should be issued against intermediaries. Interlocutory injunctions are ordered during a trial to maintain the status quo or preserve the subject matter of the litigation until the trial is over..
ATTACKS ON PRIVACY: The document asks whether privacy rights should be undermined to facilitate lawsuits against infringers. The Commission has suggested that rights holders’ so-called “right of information” should prevail over the privacy of individuals sharing cultural works online55.1. Is there a difficulty in applying IP enforcement measures (especially rules on right of information) together with rules on data protection or right to privacy in your country? 5.2. What are the limits of the right of information in your country, in view of privacy issues? Is there a need to amend the Enforcement Directive (or other EU legal instruments) in order to accommodate such conflicts?. That’s even though the European Court of Justice has said that nothing in EU law forced national judges to allow rights holders to obtain from the personal data of their subscribers (see the Promusicae ruling).
AN OVER-BROAD DEFINITION OF COMMERCIAL SCALE: Also, while the current version of IPRED only applies sanctions to infringements carried on a commercial scale, it seems that the Council and the Commission are both keen on dropping the criteria altogether in order to increase repression even against non-commercial sharing of copyrighted, patented and trademarked works66.2. Is the definition of “commercial scale” still appropriate in Recital 14 of the Enforcement Directive? Is there a need to have a definition at all, and if yes, should it be moved to the Articles of the Directive? Should the link between the commercial scale requirement and the right of information remain intact?
6.3. The criterion of “commercial scale” (as for its definition, see Recital 14 of the Enforcement Directive) applies to a limited number of specific cases: communication of banking or commercial documents [Article 6(2)], right of information towards intermediaries [Article 8(1)], and seizure of movable and immovable property and blocking of bank accounts as a precautionary measure [Article 9(2)]. For which of the above mentioned three situations do you consider the commercial scale criterion as necessary or useful? What risks do you see if this criterion were to be abolished?
6.4. If you have made the right of information subject to the commercial scale requirement, how do you deal with the problem that sometimes the rightholder needs additional information from an intermediary in order to be able to determine whether the infringement has been committed at a commercial scale?. They would do so by making IPRED’s broad definition of commercial scale7Recital 14 of IPRED: Acts carried out on a commercial scale are those carried out for direct or indirect economic or commercial advantage; this would normally exclude acts carried out by end-consumers acting in good faith. binding on all Member States.
CHILL ON INNOVATION: Damages might also be increased in the next version of IPRED, which would have a disastrous effect on innovation and creativity. Beefing up damages would allow big corporate rights holders to sue all the re-users of copyrighted works or patented inventions. Big damages means high litigation costs, and therefore has a chilling effect on innovation and free culture87.1. Do you see a deficiency in the practice of awarding damages, i.e. in compensating the rightholder for damages suffered (including moral prejudice and lost profits)? If yes, is this deficiency due to the current wording of the Enforcement Directive? Would it help this deficiency if recovery of unjust enrichment was to be ordered as an objective sanction (i.e. not depending on the culpability of the infringer), or should unjust enrichment of the infringer and other economical consequences play a greater role in calculating damages?.