European Commission Wants ISP “Cooperation” in Fighting Online Infringement

European Commission Wants ISP “Cooperation” in Fighting Online Infringement

Introduces new “blueprint” for Intellectual Property Rights to “boost creativity and innovation.” Strategy involves preventing access to counterfeit goods and services online while at the same increasing and simplifying access to legitimate alternatives.

The European Commission has released a new Intellectual Property Rights (IPR) strategy that combines a mixture of increased copyright enforcement as well as much needed reform.

“Our objective is to enable inventors, creators, users and consumers to adapt to the new circumstances and to enhance new business opportunities,” it said. “The new rules will strike the right balance between promoting creation and innovation, in part by ensuring reward and investment for creators and, on the other hand, promoting the widest possible access to goods and services protected by IPR. Getting this balance right will make a real difference to businesses (from the individual artist working alone to the big pharmaceutical companies) by encouraging investment in innovation.”

On the enforcement side the leading cause for concern is discussion of ISP “cooperation” in the fight against online infringement.

“The Commission will identify ways to create a framework allowing, in particular, combating infringements of IPR via the internet more effectively,” it adds. “Any amendments should have as their objective tackling the infringements at their source and, to that end, foster cooperation of intermediaries, such as internet service providers, while being compatible with the goals of broadband policies and without prejudicing the interests of end-consumers. The Commission will ensure that such amendments respect all fundamental rights recognised by the EU Charter of Fundamental Rights, in particular also the rights to private life, protection of personal data, freedom of expression and information and to an effective remedy.”

Though it pledges to respect fundamental rights, how can voluntary ISP “cooperation” in IP enforcement do so in the absence of clear cut legislation that has been debated on, voted on, and then monitored for compliance? Censor and filtering the Internet is hardly something ISPs should be allowed to do on a voluntary basis without public input and a dedicated system of checks and balances in place.

More importantly, the “cooperation” would likely lead to a censorship regime, the terms of which dictated by overzealous copyright holders with a penchant for alarmist rhetoric.

“Like the United States with the PROTECT IP Act, the goal of EU authorities is to use technical means to block communications and restrict users’ access in the name of enforcing an obsolete vision of copyright,” says Zimmermann, spokesperson for La Quadrature du Net. “Such a scheme would lead to the establishment of a censorship infrastructure by online actors, technically similar to those currently used in authoritarian states. In the process, freedom of communication, privacy as well as the right to a fair trial would inevitably be undermined.”

The IPR strategy identifies P2P as a “complex phenomenon” that involves several different parties, ISPs “being one of them,” and hints that more drastic action may be taken against ISPs if they refuse voluntary “cooperation.”

“The follow-up work announced in the Strategy will focus on service providers who either infringe copyright themselves or who systematically and knowingly facilitate or sustain the piracy activities of others, and profit there from,” it said. “Such an approach will target the corrosive forces driving online piracy, while respecting at the same time the innovative powers of broadband internet without prejudging the legitimate interest of consumers, including those who download. All service providers concerned have to respect an appropriate level of care in their commercial operations.”

To be fair the IPR strategy does include a number of welcome reforms:

The proposed changes include:

  • creating a unitary patent-protection system so inventors would need to register only one patent covering most EU countries – reducing costs and red tape
  • protecting brands more effectively through a modernized trademark system that is simpler, faster, more effective, efficient and consistent
  • easing access to copyright-protected works, particularly online and including Europe’s cultural heritage

Streamlining copyright licensing and revenue distribution is the most important tool for reform. The development of viable online entertainment services has been largely hindered by archaic copyright restrictions based on outdated geographic concerns.

The most interesting proposal is to create a digital library of so-called “orphan works” and make it available online. It also plans to achieve a Memorandum of Understanding among libraries, publishers, authors and collecting societies to do the same for out-of-print books.

Stay tuned.

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