EU looks to service providers for copyright enforcement

The European Commission has published a policy blueprint for dealing with intellectual property rights, promising among other things to focus on service providers in the fight against online copyright infringement.

The Intellectual Property rights (IPR) Strategy, unveiled on Tuesday, covers a variety of areas ranging from copyright to trademarks and patents. The patent-related elements have almost all been covered before in the Commission's efforts to create a unified European patent system. On the copyright side, the Commission said it wanted to organise the digitisation and dissemination of orphan works and simplify multi-territorial licensing of works within Europe, but it also touched on enforcement.

Specifically, it said a successor was needed for the 2004 IPR Enforcement Directive to bring enforcement in line with the modern, internet-centric age.

"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 therefrom," the Commission said in a statement.

"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," it said.

Service providers can include ISPs, hosting companies and the companies that provide web services.

"All service providers concerned have to respect an appropriate level of care in their commercial operations," the Commission added, while stressing that the approach did not mean changing the safe harbour provisions of the e-Commerce Directive, which broadly protect service providers from liability for what goes on over their networks.

Policing users

Nonetheless, the digital rights group La Quadrature du Net responded to the IPR Strategy by saying it was intended to force providers to police their users.

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.

– Jérémie Zimmermann, La Quadrature du Net

"Like the US 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," Jérémie Zimmermann, the group's spokesman, argued in a statement.

"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," he added.

The policy blueprint also outlines proposals for strengthening customs enforcements of intellectual property rights. It rejects the seizure of goods that are only intended for personal use, so would not lead to iPods being seized and destroyed because they contain unlawfully copied songs.

Small consignments

However, the customs elements of the IPR Strategy aim to update existing legislation — which in this case dates back to 2003 — to better tackle small consignments of pirated goods that are ordered online and delivered by post.

"We are facing an explosion in the number of small consignments of IPR-infringing goods in postal and air traffic, which may result from internet sales," the Commission said. "Preliminary figures for 2010 show an increase of 200 percent in postal consignments that were detained. Dealing with them is a burden for customs and rights holders."

The solution, the Commission proposes, is to offer the recipient of such goods the option of agreeing to the goods' destruction, which would be paid for by the customs authorities. Protected rights that could be enforced at customs would also be extended to include "topographies of semiconductor products" and "devices to circumvent technological measures", the Commission added.

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