ISP Liability, Copyright Term Extension Key IP Issues For Europe This Year

The effort to tackle digital piracy is likely to remain the most contentious intellectual property issue in Europe this year. It will be joined by debates on copyright term extension, IP provisions in trade agreements, and an ongoing discussion of patent policy in Europe.

Driven by a music industry looking to shift more responsibility onto internet service providers (ISPs), debate over the need for a “graduated” or “three-strikes” response to online infringement promises to remain heated.

In addition, a European Commission proposal to lengthen the copyright term of protection, a change eagerly sought by the recording labels, is also sparking strong opposition from digital rights activists.

Talks continue as well on an EU community patent and European patent court. In trade matters, Europe continues to play a key role in negotiations on the Anti-Counterfeiting Trade Agreement, and is under continued scrutiny for its tough IP provisions in bilateral trade negotiations.

This could be a transition year for the European Commission as it undergoes its every-five-year replacement of directorate heads and officers in 2010.

ISPs Under Pressure

The music industry needs to see “ISP cooperation become a reality” this year, said a spokesman for the International Federation for the Phonographic Industry. IFPI’s Digital Music Report 2009 [pdf], published on 16 January, warned that despite more legitimate online music offers and more innovative business models, the sector remains overwhelmed by peer-to-peer (P2P) piracy.

The recording industry’s contention that ISPs should play a greater role in policing the content passing through their networks continues to find a sympathetic response in some governments.

French ISPs agreed in November 2007 to try filtering infringing files (IPW, European Policy, 27 November 2007). The Senate last year approved a proposal by French President Nicolas Sarkozy for a graduated response regime in which alleged infringers are given notice and then warning before their internet service is terminated temporarily. The National Assembly is expected to vote on the proposal by the end of March, the government has said.

The United Kingdom is eyeing a similar scheme, though probably without the disconnection remedy. A July 2008 government-brokered deal between major ISPs and the music and film industries took a light-touch, co-regulatory approach to digital piracy (IPW, Enforcement, 28 July 2008). But in a 29 January 2009 response [pdf] to input on legislative options to address illegal P2P file-swapping, the government acknowledged that neither its approach nor any other proposed option won much support from rights holders, consumers or ISPs.

In an interim “Digital Britain” report published the same day, the government said it wants ISPs to be required to notify suspected infringers, subject to “reasonable levels of proof from rights holders,” that their conduct is unlawful, and to gather anonymised data on serious repeat offenders to be given to rights owners upon receipt of a court order. It apparently ruled out terminating serial infringers’ internet subscriptions. The final report is due in June.

As part of the Digital Britain initiative, the UK Intellectual Property Office is seeking feedback on an informal paper on “Developing a Copyright Agenda for the 21st Century” [pdf]. Areas of discussion include the internet and digitisation, creators’ rights, rights clearance processes and enforcement. A final report is expected before the summer, the IPO said.

The German government, considered, but rejected, termination of internet access of suspected infringers, said Markus Beckedahl of European Digital Rights or EDRi). It supports the warning phases of “three-strikes” and may consider requiring ISPs to slow service to suspected pirates, he said. Justice Minister Brigitte Zypries said publicly that cutting off internet access would be highly problematic, constitutionally and politically, said Ralf Bendrath of EDRi.

In January, a lawsuit brought by the Irish Recorded Music Association to force ISP Eircom to block P2P file-sharing on its network ended when the ISP agreed to introduce a three-strikes system of notification, warning, and possible suspension of internet access, EDRi and others reported. Digital Rights Ireland attacked the settlement as unreliable, secret, undemocratic and disproportionate.

The European Commission also has toyed with the idea of a graduated response approach to unauthorised file-sharing. However, in April 2008, the European Parliament voted to urge governments not to allow suspension of internet access in suspected piracy cases. The controversial vote may have led Information Society and Media Commissioner Viviane Reding to rethink her position.

In a speech last November, Reding criticised EU and national efforts to view content issues such as piracy as requiring a “deal” between two camps only. The third camp, consumers, must be part of the equation, she said. She promised to relaunch debate on a future framework for online content this year.

Reding’s recommendation, most likely focussing on multi-territorial music licensing, digital rights management and perhaps ISP cooperation on internet piracy, is expected in April, the European Publishers Council said. It also will tackle new business models, legal matters, consumers’ rights and best anti-piracy practices, EPC said.

Digital rights and consumer groups continue to oppose the graduated response mechanism. Among its priorities for the Czech EU presidency, which holds office from January through June 2009, the European Consumers’ Organisation (BEUC) said that while copyright must be respected, efforts to make ISPs responsible for policing violations would be disproportionate, inefficient and a breach of fundamental rights such as the presumption of innocence and protection of personal data.

Sweden will hold the EU presidency from 1 July to 31 December.

Copyright Term Extension

On 16 July 2008, the European Commission proposed extending the copyright term [pdf] for recorded performances and records themselves from 50 to 95 years, saying it would allow performers to earn royalties over a longer period and record producers to gain added revenue from online and offline record sales.

The European Parliament Legal Affairs Committee backed the proposal on 12 February, paving the way for a plenary vote on 11 March.

Far from benefiting performers and session musicians, the term extension directive will “hand millions of euros over to the world’s four major record labels, money that will come directly from the pockets of European consumers,” the (UK) Open Rights Group and Electronic Frontier Foundation Europe said. They, along with BEUC, Consumer Focus, EDRi, and the International Federation of Library Associations, asked lawmakers on the committees handling the legislation to reject it.

Governments are rumoured to be willing to settle for a 20- rather than 45-year extension. A 70-year term “was the focus of discussion in the EU several years ago and was rejected as a bad idea then,” said ORG Executive Director Jim Killock. “We shouldn’t be falling for the classic ‘ask for double and settle for half’ ruse today,” he said.

Other Copyright Issues

At the same time as it adopted the copyright extension proposal, the Commission published a “Green Paper on Copyright in the Knowledge Economy” [pdf] to spur debate on how best to disseminate knowledge for science, research and education in the digital environment. The consultation, which closed 30 November 2008, sought input on a range of topics related to copyright limitations and exceptions.

Last month, the European Parliament Legal Affairs Committee responded to the paper. The European Bureau of Library, Information and Documentation Associations accused lawmakers of bias toward publishers and asked them to reject the report when it comes up for vote in plenary session possibly 12 March.

The timing of any Commission proposals stemming from the consultation is unclear. The European Publishers Council said they are expected in summer or early autumn.

The Czech presidency is holding a 19-20 March conference on audiovision and copyright: “The Responsibilities of Content Providers and Users.” The programme is here.

Patent Reform

EU governments in November 2007 agreed on the main elements of a pan-European patent litigation system (IPW, European Policy, 23 November 2007) after the issue stalled in 2006.

A draft agreement and statute on the European Patent Court is “now on the table,” Internal Market Commissioner Charlie McCreevy said last October. The document is here [pdf]. “Significant progress” has also been made on a proposal for a Community patent, he said.

The presidency reported on 21 November 2008 on the status of the proposals, available here [pdf].

As part of its overall plan to boost IP rights protection, the Commission last July approved a strategy on industrial property (patent and trademark). The plan calls for better enforcement on the ground against counterfeiting and piracy; studies on the quality of the patent system and overall functioning of the trademark regime; and measures to make it easier for small businesses to access industrial property rights.

The European Patent Office will focus on IP in rapidly developing industries and technologies at its 28-30 April European Patent Forum and PATINNOVA 2009 conference.

Trade

Negotiations on international trade standards for tackling large-scale copyright, trademark and patent infringements continue this year, the European Commission said. Current negotiating parties to the Anti-Counterfeiting Treaty Agreement (ACTA) are the European Union, United States, Australia, Canada, Japan, Mexico, Morocco, New Zealand, Singapore and Switzerland.

The proposal has infuriated public interest groups, who are concerned about the speed and secrecy of the negotiations.

In January, the Foundation for a Free Information Infrastructure filed a complaint with the EU Ombudsman against the EU Council for obstructing access to the agreement, FFII said. Public interest organisations worry ACTA may “limit access to medicines, limit access to the internet, give patent trolls free reign and harm the most innovative sectors of the economy,” it said.

On 30 January, the EU and China agreed to boost customs cooperation to protect IP rights. The action plan includes the creation of a working group to study the flow of bogus goods between the regions; exchanging of information on IP rights risks and of officials; operational coordination between key ports and airports, and development of partnerships with China’s private sector to better target suspect shipments, the European Commission said.

And the EU continues to actively negotiate bilateral agreements in Latin America and Asia. Europe has pushed for strong provisions on IP rights in bilaterals, which has come under particular criticism for its possible impact on medicines access for the poor in those countries (IPW, European Policy, 18 February 2009).

Europe also is expected to continue to push hard at the World Trade Organization for greater protection of geographical indications, products whose names derive from locations. It also will continue to be involved in issues surrounding customs measures that may impede legitimate shipments of generic medicines or other products suspected of being counterfeit.