EC recommends live anti-piracy actions
May 4, 2023
By Colin Mann
The European Commission has adopted a Recommendation on how to combat commercial scale online piracy of sports and other live events, such as concerts and theatre performances, but has been criticised by a number of trade bodies for under-delivering and delaying important decisions.
The Recommendation encourages Member States, national authorities, holders of rights and providers of intermediary services to take effective, balanced and appropriate measures to fight unauthorised retransmissions of such streaming, in full compliance with fundamental rights and personal data protection rules. By stepping up the fight against online piracy, the Commission claims the Recommendation will contribute to strengthening the competitiveness of the EU sport and creative industries.
According to the Commission, sports and live events contribute to fostering a diverse European cultural scene, to bringing citizens together and to providing a sense of community. The organisation of such events as well as their live transmission require substantial investments, while at the same time they contribute to economic growth and job creation. Unauthorised streaming can cause significant loss in revenue for performers, live and sports event organisers and broadcasters, thus undermining the viability of the services they offer.
The Recommendation focuses on three main areas:
- Prompt treatment of notices related to live events: building on the Digital Services Act, it stresses the importance of urgent action from providers of hosting services in order to minimise the harm caused by illegal streaming.
- Dynamic injunctions: based on the remedies provided in the Enforcement Directive building on experiences in some Member States, the Recommendation encourages the use of blocking injunctions tailored to live events and, in the case of live sports events, encourages Member States to grant legal standing to sports event organisers to seek an injunction where it is currently not possible.
- Commercial offers and awareness: it recommends live and sports event organisers and broadcasters to increase the availability, affordability and attractiveness of their commercial offers to end users across the Union. It calls on Member States to raise users’ awareness on legal offers to enjoy this type of content among consumers and on the issue of piracy among enforcement authorities.
The Recommendation also enhances the cooperation amongst the relevant national authorities, and between rightsholders and intermediaries better to tackle the phenomenon of unauthorised retransmissions of live events. An important objective is to ensure a regular exchange of information among administrative authorities on the measures applied, their challenges and the good practices against online piracy of live events. Cross-border cooperation between Member States is important in view of the nature of piracy, which takes place across borders.
Finally, the Recommendation sets up a solid monitoring system to assess its effects on the fight against piracy and to consider further measures if needed. This work will be done with the support of the European Observatory on Infringements of Intellectual Property Rights (EUIPO Observatory) and will entail the establishment of clear Key Performance Indicators (KPIs) to conduct an effective monitoring.
The Commission will closely monitor, together with the EUIPO Observatory, the effects of this Recommendation. It is launching the process for the establishment of the KPIs for the monitoring, which will be finalised before the summer.
On the basis of this monitoring exercise, the Commission will assess the effects of the Recommendation on unauthorised retransmissions of live sports and other live events by November 17th, 2025. This is also the deadline by which the Commission will evaluate the way the Digital Services Act interacts with other legal acts, including copyright legislation. The implementation of the Digital Services Act will boost the broader fight against illegal content on online platforms, with substantial impact also on the online unauthorised retransmissions of live sports and other live events.
The Commission will then decide whether additional measures are needed at EU level, in view of technological developments, as well as the evolution of distribution channels and consumption patterns.
The Recommendation follows up the European Parliament resolution on the challenges of sport event organisers in the digital environment adopted in May 2021. The Commission has consulted stakeholders in the preparation of the Recommendation at a meeting in February 2023 with representatives of broadcasters, sports rights organisation, live performance organisations and online intermediaries and national authorities. It has also discussed with Member States in the context of the Copyright Contact Committee.
The Recommendation also builds on the 2020 Action Plan on Intellectual Property, which recognised that the persistence of counterfeiting and piracy is one the main challenges preventing Europe from capitalising on its intellectual assets to boost recovery and resilience.
Legal remedies to fight online piracy already exist, notably the Digital Services Act and the Enforcement Directive (Directive 2004/48/EC). In particular, the Digital Services Act streamlines the processing of notices sent to providers of hosting services in case of illegal content. In addition, under the Enforcement Directive rightsholders can obtain injunctions ordering online intermediaries to block the access to or remove unauthorised content. The recommendation indicates how these remedies could be used in the specific case of live events.
“The Internet already enables European citizens to enjoy a variety of live events from sports events to live concerts,” notes Margrethe Vestager, Executive Vice-President for a Europe Fit for the Digital Age. “However, commercial scale piracy is jeopardising the viability of our creative and sports industries. Especially in case of live events which generate most of their value during the real-time transmission. It is therefore essential that online intermediaries cooperate with live and sports event organisers as well as broadcasters to combat piracy of live events.”
“The Internet allows us to watch live sports, concerts and theatre performance from the comfort of our homes more than ever before – but it can also put whole economic models at risk,” warns Thierry Breton, Commissioner for Internal Market. “We have already a solid framework to counter illegal content online, but it has to be enforced. Today, we call on Member States to step up the fight against piracy which demonetises our live event sectors, for example by allowing sports event organisers to seek an injunction. We are setting up a monitoring system and clear KPIs to assess the effects on these measures on the fight against online piracy and the potential need for further measures.”
Grégoire Polad, Director General, ACT (Association of Commercial Television and Video on Demand Services in Europe) stated: “This essentially allows the present Commission to deliver little to nothing on this issue (despite a clear Parliamentary mandate to do so) before the end of this mandate; and, simultaneously makes it very improbable for the next legislature to have the required time to adopt hard legislation if the recommendation is deemed inadequate. This is a political and unilateral decision that will cost Europe’s creative economy dearly at a time when it needs it most.”
Trade body the European VOD Coalition has expressed disappointment in the Commission’s decision to delay the consideration of binding rules to combat online piracy
“Members of the European VOD Coalition invest heavily in audiovisual content and distribution to inform and entertain consumers across Europe,” they say in a statement. “However, the increasingly important role that VoD services play within the entertainment industry is threatened by online piracy. We strongly believe that the EU needs a strong legal framework to support our industry.”
“Whilst we appreciate and welcome the Commission recommendation, calling upon member states to step up and provide effective measures to combat live piracy, we are disappointed to read that the Commission has decided to delay taking a decision on whether binding rules are needed for another two and a half years. We also regret the absence of a clear timeline to set criteria determining the effectiveness of the Recommendation. We also hope that the Commission can provide measured assurances on a way to effectively review the impact of the actions taken in response to this Recommendation,” they conclude.
The Audiovisual Anti-Piracy Alliance (AAPA), which represents 25 companies involved in the provision of protected audiovisual services, security technology for protecting such services, has also expressed its disappointment and concern regarding the possibility that a review of the effectiveness of the Recommendation may not occur for two and a half years.
“Not only is this initiative of a non-legislative nature (while the European Parliament, supported by the AAPA and other actors, had previously called for a legislative initiative), the possibility of a 2.5-year assessment period does not address the urgency of the situation,” it states.
“The possible 2.5-year assessment period in the Recommendation and the ineffective approach to piracy of live content enshrined in DSA means that the European Commission will not do anything else short term to address online piracy of live events, whose value is – by nature – consumed live. The Recommendation contains no deterrent to pirates to cease their illicit activities. It is, in essence, a green light for pirates to keep stealing live content online. It also means that de facto, European consumers will be exposed to the risks related to the consumption of – all types of – pirated content for a few more years. As demonstrated in a recent study conducted for AAPA , consumers also are the victims of piracy, through the targeted delivery and installation of malicious software (malware) onto their devices. The study found an average 57 per cent risk of an audiovisual piracy app being installed with embedded malware. Furthermore, it carries no short-term incentive to hosting providers and other intermediaries to work with the legitimate industry to reduce piracy now.”
Accordingly, the AAPA calls on the European Commission to carry out its assessment of the effectiveness of the Recommendation as soon as possible.
“Moreover, we regret that the European Commission also missed the opportunity to introduce a strong monitoring system and solid KPIs for the assessment of the Recommendation. Because those who facilitate piracy have no incentive to respond to soft measures, we ask the European Commission and the EU Intellectual Property Office Observatory (EUIPO) to urgently publish a set of KPIs setting out the objectives of this Recommendation. Without a clear deadline set in stone by which KPIs must be set out, online intermediaries will not be encouraged to act and step up the fight against Piracy. Given most of the data suggested below is easily available and ready to use, there should be no reason to delay the monitoring process. Therefore, AAPA calls on the EUIPO Observatory to consider the KPIs outlined in AAPA’s contribution to the Commission’s call for evidence , which includes:
- Quarterly data from rights holders on the volume of notices including success rate and whether or not these notices were processed in time.
- Quarterly data from 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.
- Data from Member States on the extent to which blocking of live events has occurred following the Recommendation.
Finally, the Recommendation’s incentive for rights holders to ‘increase the availability, affordability, and attractiveness of their commercial offers’, implies that legal audiovisual content is not sufficiently available across the EU while from our perspective legal offers have never been more as widely and easily accessible than before. A recent study from the EUIPO Observatory found that European consumers increasingly choose legal offers and that both the quality and diversity of content offered on legal services is viewed as being superior to that found on illegal sources.
While the AAPA and its members will continue to contribute expertise and data to the European Commission and the EUIPO Observatory as the effects of the Recommendation are being monitored, we remain convinced that an EU legislative instrument remains the most efficient and effective way to tackle piracy of live content within and across EU Member States.”