The European Commission will soon launch a second intellectual property enforcement directive (IPRED2), which this time will contain those crimninal provisions removed during the passage of IPRED1 in 2004 due to doubts as to their legal basis. With the passage of the Lisbon treaty and recent ECJ legal decisions this uncertainty has been reduced. In the following posts I want to sketch out other changes at an institutional level and provide an update on the mustering of the forces behind the new directive.
The first of these is the creation in 2008 of a unit dedicated to IP Enforcement inside of DG Internal Market. Created under the direction of Alvydas Stančikas, this unit creates a section of the bureaucracy now wedded unconditionally to the ideology of expansionist IP laws. Functionaries, alas, are usually substantially indifferent to the content of their roles, preferring to see their task as to bring suggested initiatives to fruition (thereby accruing institutional prestige with the career advancement that accompanies it) rather than challenging the assumptions behind them.
For more than a decade the Copyright unit, long headed by Tilman Lueder, has been the epicenter for Commission action. Whilst attached to the shibboleths which insist that increased protection is necessary to protect innovation, it at least located enforcement in a wider context of copyright objectives. Removal of enforcement questions from any broader discussion of the ecology of innovation and creativity transitions the apparatus to a structural capture by content industry incumbents.
European Observatory on Counterfeiting and Piracy
The first task of the new Unit has been to oversee the establishment of an ‘Observatory‘ to gather data about alleged IP infringements. Like so many other foul initiatives in the copyright sphere of late, it emanated from Sarkozy’s France. More specifically it was proposed during the period of the French Presidency in 2008. Given that he had made copyright protectionism a battle-cry in the previous year’s election, this came as no surprise. This campaign opened with a Communication by the European Commission on 16 July, mooting the need for better information collection and sharing. The following September the ECPO’S creation was mandated by a Council Resolution.
Sarkozy’s demands were realised on April 2nd 2009 saw the establishment of the ECPO’S launch by Charlie McCreevy, former irish finance minister, then Commissioner for the Internal Market. In September 2009 the Commission set out its aims in another Communication.
For some time those responsible for IP policy at a European level have bemoaned the unsolicited attention of external observers who criticise their policies on the basis of users’ interests or alternative visions of the innovation process. This was especially the case in the successful defeat of the EU Commission’s campaign for software patents. Part of their response has been to increase their activity in areas of soft law (communications, resolutions), try and effect change through closed-door dialogues between interested ‘stakeholders‘ (a lot more on this in my next post), and to either encourage or actively implement the mobilisation of administrative resources to attain their ends. The result is an immiseration of public discussion and a further dilution of democracy. The EOCP is a perfect example of several of these tendencies.
McCreevy’s speech at the launch spelled out the new approach:
“The mere existence of new laws, although important, cannot be expected to combat a worldwide infringement problem. So once again I stress the point that we must turn our attention towards supportive programs that can help bring to bear strong administrative commitments and resources, in conjunction with the flexibility and
resourcefulness of the private sector.”
Participation is limited to those invited by the Commission and industry involvement is obviously preferred: since the foundation of the ECPO there has been almost no involvement of consumer or civil liberties organizations (the BEUC did attend one meeting).
Criticism of Commission’s reliance upon industry produced statistics with regard to infringement, which unsurprisingly exaggerate the scale of losses, means that the basic task is to produce defensible figures. The methodology and collection of the data collation will be determined by a private contractor who is to work closely with industry representatives (like the IFPI and the MPAA).
Secondly the EOCP functions as a forum for the a series of work-groups: legal reform (in preparation of IPRED2); on online copyright infringement (focusing heavily on the legal responsibility of ISPs as well as IPRED2); public awareness.
In general the plan is that the EOCP will be a clearing-house for exchange of ‘best practices’ derived both from the various jurisdictions and a transmission-belt for private-sector enforcement initiatives. And doesn’t it all sound somewhat familiar? Well it should, much of it is in the Anti-Counterfeiting Trade Agreement (ACTA) – even though it hasn’t been passed yet, the EU is behaving as if it’s already there!
These meetings are staffed by functionaries from the Knowledge Economy and IP Enforcement Units inside DG Internal Market. In order to access additional resources the Observatory will now be under the official auspices of the Office for the Harmonization of the Internal Market in Alicante, who are otherwise concerned with Trademarks and Designs.
With the departure of McCreevy in early 2010, the position of commissioner for internal market passed to Michel Barnier, a right-wing member of Sarkozy’s UMP; his cabinet can be expected to provide enthusiastic encouragement for all enforcement related efforts.
Why Should We Care?
The real target of all these efforts are ordinary computer users. The cloud of professed concern about organized crime and the hazards of fake medicines is really an alibi for a campaign around individual use and circulation of cultural works. The EOCP is about preparing the ground for a subsequent legislative campaign threatening massive damages and the obligation to employ censorware against intermediaries such as ISPs, and nonjudicial punishments against users (a la Hadopi) or worse, jail (but this more as a threat than a reality).
In addition to the crudely repressive aspect of this, what grates is the boneheaded commitment to monopoly rights as a means to promote some notional ‘knowledge economy’.
- The Commission has screwed up in the past on this and it knows it: their own report on the Database Directive demonstrates that.
- The software community in Europe showed them they were wrong about software patents as well, but had to defeat the Commission in Parliament due to their impermeability to rational argument.
- And today, how many innovative services will never be born in Europe because of the protectionist approach to copyright law? Google could launch googlebooks precisely because they had a broad fair-use defense to rely upon, that gave them a counterweight to the publishers’ threats and enabled a negotiation. Such a scenario was unthinkable in Europe and it’s the EU’s loss as an economy.
Will anyone inside the EU Commission will take the risk to launch processes which correct these failures?
My next posts will deal with what is going on within the EOCP’s subgroups and the content of IPRED2.
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