AAPA comments on EC live content piracy initiative
February 16, 2023
By Colin Mann
Trade body the Audiovisual Anti-Piracy Alliance (AAPA) has submitted its input to the European Commission’s (EC) call for evidence on its ‘Combating online piracy of live content’ initiative.
“As signatories to the Call To Action to End Live Piracy Now, we would like to restate that an EU legislative instrument still remains the most efficient and effective way to tackle piracy of live content within and across Member States,” says AAPA.
“As preliminary remark, the AAPA reiterates that, given the short-term value of live events, acting as quickly as possible (and certainly before the end of the event itself) to remove illegal content is critical. Globally, in 2020, a study showed that there were more than 357 million daily visits to audiovisual piracy sites, with Europe disproportionately accounting for 45.72 per cent of traffic. Research from Synamedia and Ampere Analysis estimated that sports rights holders have forfeited around 26 billion euros due to piracy. Piracy of live content represents a real risk to the whole creative and cultural industry value chain, to consumers’ welfare and to the overall EU economy,” it warns.
“In addition to pirated content consumed online, the surge in consumption via illicit IPTV in Europe , is an alarming phenomenon from AAPA’s perspective. An independent study undertaken by Bournemouth University estimated that the legitimate industry lost €3.21 billion in 2021 alone due to consumers using illicit IPTV piracy services. The illicit IPTV service providers gained €1.06 billion. The study also indicated that 17 million Europeans – slightly fewer people than the population of The Netherlands – accessed illicit IPTV services. The use of illicit IPTV services was even higher among the 16-24 age group with 5.9 million,” it advises.
“Piracy can also have detrimental consequences for consumers. An independent study conducted for AAPA showed that consumers are the victims of piracy, through the targeted delivery and installation of malicious software (malware) onto consumer devices, while they use audiovisual piracy sites, apps, Illegal Streaming devices and Set Top Boxes. The study found an average 57 per cent chance of an audiovisual piracy app being installed with embedded malware. Furthermore within 71 seconds of clicking on a pirate site a consumer’s device could be infected,” it notes.
Against this background, AAPA has said it would like the Recommendation to bring clarifications to the three following issues:
- Clarify the notion of timely removals
As the Recommendation aims at “identifying the best available means in Union law to help broadcasters and live events organisers, including sports event organisers, to prevent online piracy […]”, it is clear that the main focus should be on the immediate removal of infringing content via the notice and take down mechanism. The issue we have always had to face is the delayed response, if any, from online intermediaries that have been notified. The recently adopted Digital Services Act (DSA) makes no meaningful change to the concept of “expeditious” removal currently enshrined in EU law. The latter is open to interpretation from online intermediaries which, in many cases, means they will simply either not respond to notices or do so hours or days after the end of the live event. Many of them will exploit all ambiguities in the law to avoid acting at all – never mind expeditiously – which is why concrete measures need to be taken.
The Recommendation should take into account the nature of the content to build on the concept of “timely” removals which was introduced in the DSA. As live content is almost always watermarked and/or fingerprinted there is no question about identifying the stolen content which means the removal should be immediate and, in any case, well before the event terminates. In case online intermediaries do not remove access to the content in a timely manner, they should be held responsible for the harm caused to rights holders.
Failure to clarify the legal grounds, which would pave the way for immediate removal as an effective tool for live piracy, leaves rights holders in the position where there is no effective remedy for infringements which in turn means breaching upon rights holders’ freedom to conduct business as in Art 16. of the EU Charter of Fundamental Rights.
- Promote dynamic injunctions and identify why and where there are gaps in their application
Injunctions remain an effective tool when requests to take down the content are ignored. Yet there is room to harmonise enforcement, increase effectiveness and address existing barriers. Article 8(3) of the Information Society Directive requires Member States to ensure that rights holders can apply for an injunction against intermediaries whose services are used to infringe copyright. However, as indicated in the Call for Evidence “injunctions targeting live events, are used in certain Member States (…)” only. The issue is linked to the statutory test set out in Article8(3) which contains a discretionary element which Member States have used to create vastly divergent regimes across the European Union. The Commission should seek to create a level playing field and therefore replicate across the EU a powerful but carefully used approach to live blocking orders, bearing in mind that such actions shall not exclude rights holders who cannot act on the legal ground of copyright.
- Deliver an assessment mechanism that reflects market realities
We welcome the commitment to “set up a monitoring system to assess the effects of the recommendation on the effectiveness of the legal remedies…”. However, it is crucial that the European Commission prescribes the indicators based on which this assessment will be carried out. These indicators could include:
- Quarterly data from rights holders on the volume of notices submitted to EU based hosting providers, and whether or not those notices were acted upon in a timely manner.
- Quarterly data from EU based hosting providers setting out (i) the volume of notices they have received from rights holders (ii) in how many cases they have acted to remove the content covered by the notice (iii) after what time period such removal took place, (iv) how many instances of repeat infringement they have identified and (v) how many customers they have permanently banned as a result of repeat infringement. The Recommendation should explicitly clarify that all EU based hosting providers are under an obligation to provide such data to the Commission.
- Propose assessment criteria on stated IP policies of hosting providers and their customer verification requirements, and perform a follow-up analysis of top 20 reported hosting providers from previously gathered data based on such criteria. Data from Member States on the extent to which blocking of live events has occurred following the Recommendation. Such data should be provided quarterly and should include at a minimum the following detail (i) what the Member State has done to promote the use of article 8(3) within their territory (ii) the number of cases in which blocking of illegal transmission of live rights has occurred (iii) which rights holders and which rights are involved (iv) whether there have been situations where rights holders have tried and been unable to obtain a live blocking order, and if so why, and (v) whether there are ongoing impediments to the use by rights holders of article 8(3) and if so what the Member State is doing to address those.
Moreover, the Recommendation should contain a review clause (no later than 12 months following publication). Where this review shows insufficient impact on objective market criteria, the EC should commit to proposing a dedicated legislative initiative. Without a specific deadline set in stone by which the objectives set out in the Recommendation must be achieved, none of the players in scope will be incentivised to act,” argues AAPA.