EC: ISPs compelled to combat users’ IP infringement?
January 7, 2011
by Colin Mann
A report from the European Commission (EC) has suggested that rates of intellectual property infringement in the EU are “alarming”, and accepts that while an EU law on IP rights has had some effect, the legal measure was not designed to deal with online piracy. According to the EC, current laws are not strong enough to combat online IP infringement effectively and it suggests that powers to compel Internet service providers (ISPs) and other intermediaries to take more proactive steps should be examined.
The report comments on the effectiveness of 2004’s Directive on Intellectual Property Rights, which harmonised the measures that rights holders and governments could take when IP rights were infringed and established cross-border co-operation to fight piracy.
“A first evaluation of the impact of the Directive shows that noteworthy progress has been made since it was adopted and implemented in the Member States,” noted the report, which acknowledged that the Directive created “high European legal standards to enforce different types of rights that are protected by independent legal regimes (such as copyright, patents, trademarks and designs, but also geographical indications and plant breeders’ rights).”
The EC suggested, however, that despite an overall improvement of enforcement procedures, the sheer volume and financial value of intellectual property rights infringements were “alarming,” adding that one reason was the “unprecedented increase in opportunities to infringe intellectual property rights offered by the Internet. The Directive was not designed with this challenge in mind.”
According to the EC, the multi-purpose nature of the Internet makes it easy to commit a wide variety of infringements of intellectual property rights. “Goods infringing intellectual property rights are offered for sale on the Internet. Search engines often enable fraudsters to attract Internet users to their unlawful offers available for sale or download.”
In addition, file-sharing of copyright-protected content had become ubiquitous, partly because the development of legal offers of digital content has not been able to keep up with demand, especially on a cross-border basis, and has led many law-abiding citizens to commit massive infringements of copyright and related rights in the form of illegal up-loading and disseminating protected content.
The report noted that many online sites were “either hosting or facilitating the online distribution of protected works without the consent of the right holders. In this context, the limitations of the existing legal framework may need to be clearly assessed,” it suggested. These limitations could cover the laws governing the liabilities and responsibilities of intermediaries, including ISPs and web hosts. These companies are currently not responsible for illegal use of their services that they are not aware of.
The EC noted that the Directive allows for injunctions to be taken out against intermediaries, but pointed out that the level of evidence required by the courts in the Member States is generally rather high, and that uncertainties remain over intermediaries and the specific measures to which they are subject by contributing to or facilitating an infringement, regardless of their liability,
The EC said that intermediaries such as ISPs could be vital in combating IP infringement, but admitted that the current law does not allow countries to force them to take action. “The currently available legislative and non-legislative instruments are not powerful enough to combat online infringements of intellectual property rights effectively,” it said. “Given intermediaries’ favourable position to contribute to the prevention and termination of online infringements, the Commission could explore how to involve them more closely.”
The EC has called for feedback from the European Parliament, the Council of Ministers, Member States, the European Economic and Social Committee and all other interested parties by March 31st 2011.