Inside the European Observatory on Counterfeiting and Piracy
Two spheres of activity have dominated the attention of the EOCP since its inception: the rather insipid sounding ‘stakeholder dialogue on illegal uploading and downloading’ and a subgroup working on a review of the implementation of IPRED1 and proposals for the future. Where the first attempts to broker agreements between corporate players on opposing sides of the policy battle, the second is dedicated to the generation of new legislative substance. In addition there is work being done on public awareness initiatives around the ‘problem’ of counterfeiting and piracy.
Preparing the Ground for IPRED2: Legal Subgroup; Whois?
This has a relatively small membership made up of Commission employees such as Alvydas Stančikas together with representatives from national anti-counterfeiting groups (France, Italy, Sweden, Belgium, Netherlands), their European counterparts (SNB REACT), the International Federation of the Photographic Industry, Motion Picture Association, Business Software Alliance and lawyers representing collecting societies such as BASCAP and major software producers. There are no participants from consumer or civil liberties groups, or indeed from any other NGO. Nominally the European Consumer Organization – BEUC – should have a member present as well, but this has not come to be, for reasons unclear.
Their focus has been on reviewing the impact of the first Enforcement directive, analysing divergences in application between EU members states, and ferreting out legal instruments employed in some jurisdictions which they believe may be usefully imported elsewhere in the EU by means of IPRED2.
A first meeting was held in October 2009, thereafter the group met monthly and was chaired by Benoît Lory (DG Internal Market D3). They were provided with support to devise questionnaires and canvas lawyers in member states on a series of questions which became the basis for reports on the following areas: damages, evidence, corrective measures, injunctions. The recommendations contained therein are basically a shopping list assembled by industry.
Broadly we can divide the measures by their targets: physical goods and online activity. Whilst my interest is principally in those targeting online communication, other bona fide players are also at risk.
For example a combination of patents, trademark laws and border measures are being employed against transshipments by the generic pharmaceuticals industry through Europe. Drugs which are off patent both at their source and destination in the Global South are now at risk if moved through the EU. On repeated occasions overt the last three years such medicines, produced in India and headed for countries such as Brazil, have been seized in the Netherlands and Germany. Hysteria around fake medicines has been a key instrument in the game to get public opinion behind new enforcement laws, and this is a being used as a cover to go after the producers and consumers of genuine products which are simply not produced by the original patent holder.
Obstacles to the Enforcement Engine:
1. Data Protection – Promusicae v Telefonica
From a user’s perspective the most important document is the submission in relation to evidence. As is well known, copyright owners employ firms to track the internet protocol addresses of users alleged to be sharing copyrighted works. Obviously they need to link that IP with a human being and in order to do that they have generally needed a court order. Numerous courts throughout Europe have rejected or limited requests for such orders. The grounds for such limitations have been varied.
Best known perhaps is the case of Promusicae v Telefonica. Here the Telco refused to provide user identity information to a collective rights organisation on the grounds that it would be in breach of data protection law. The Spanish Court initially decided that such information should only be released in the context of a criminal and not civil actions. The case was then referred to the ECJ, to determine whether European directives required that the identities be revealed for purposes of instigating a civil action. The Court’s answer was inconclusive, stating that the law neither required nor forbade the provision of information for identification purposes, and said that that there should be a ‘proportionate’ balancing of the privacy and enforcement interests present.
The Promusicae result was a hindrance to the enforcement strategy in Spain and the issues it raises Europe-wide (distinct factors have produced a similar outcome in Austria) have been investigated extensively by both the legal subgroup and the stakeholders dialogue on illegal up and down-loading. The latter commissioned two reports on the interaction between copyright enforcement and data protection/retention laws in nine jurisdictions, the first surveying Austria, Belgium, Germany, France Spain and Sweden, the second extending the same investigation to the UK, Netherlands and Poland.
The risks to users are not addressed in the above-mentioned reports; mistakes are often made in the collection of ‘evidence’ online, and the privacy risks are real. Just last month an erstwhile enforcement practice in Britain, ACM:Law, went out of business; they had offered themselves as enforcement agents for various copyright owners, but after identifying some users from their IPs finished up abandoning numerous cases for lack of evidence. Insecurely stored personal data, supposedly associating named users with pornographic material, then leaked out of their site due to a security exploit. Now the firm is dead and its principal under investigation from the Information Commissioner’s Office…
2. ‘Commercial Scale’
In several jurisdictions the identification of alleged offenders is contingent on whether the infringement is of ‘commercial scale’. As far as the content industries are concerned, all online infringements are on such a scale due to the ease of making subsequent copies. In their eyes there is no difference between individuals using p2p systems and those operating commercial enterprises trading in unauthorised copies.
In addition to exposing users to more severe punishments, such a reinterpretation would have other consequences. ‘Commercial scale’ operations are more commonly treated as a matter of criminal liability, and as a result are also considered a proper sphere for the investment of state enforcement resources. Secondly in such cases the plaintiffs can seek additional information be it financial or other types of records.
For the moment however the definition of ‘commercial scale’ varies widely across countries: whereas in Italy it requires use in the ‘course of trade’, in Finland there is no need to show a ‘profit motive’. IPRED1 described it in Recital 14, but with insufficient precision to set out a bright-line rule:
” 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.”
Endgame: A ‘Right of Information’ (for the content industry)
Overall the key aim of the media lobby is to secure what they call the ‘right to information’ meaning the possibility to identify a suspected infringer for purposes of prosecution. Their position is that any changes necessary as regards data protection or commercial scale should be made to ensure this identification. This will bring down the costs of prosecution, speed up the process and increase the breadth of the repressive campaign.
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