EU Council Presidency Presents Paper On Tackling Copyright Infringement That's Little More Than ACTA Reheated

from the forward-to-the-past dept

The current legislative framework is not necessarily fit for purpose in the digital environment.

Clarify which tools are available to identify IPR infringers: clarify the retention and disclosure of personal data by intermediaries, in order to improve identification in case of commercial scale infringements while guaranteeing the protection of fundamental rights of individuals (thus avoiding abuses); clarify to what extent due diligence obligations such as « know your customer » are or should be imposed on intermediaries.

Acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.

Improve the efficiency of actions to stop IPR infringements through better involvement of intermediaries: clarify the notion of intermediary in the context of Directive 2004/48 (are payment and advertising service providers included ?), clarify the conditions for imposing injunctions on them (to what extent should intermediaries be involved in the infringement ?), clarify what type of injunction can be imposed on intermediaries (which measures ? should priority be given to the « follow the money principle » to deprive commercial scale infringers of the revenue flows that draw them into such activities?); clarify the duration of injunctions and the possibility of obtaining cross-border or even pan-European injunctions.

Promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement

Improve the accessibility of judicial systems, in particular for SMEs: introduce fast track procedures for small claims.

Each Party shall provide that its judicial authorities have the authority to adopt provisional measures inaudita altera parte where appropriate

Clarify the allocation of damages: increase the predictability of the amounts allocated and ensure that damages awarded are sufficient to cover the prejudice suffered

In determining the amount of damages for infringement of intellectual property rights, a Party’s judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

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The political machine of the European Union is undergoing a major makeover. Elections recently took place for Members of the European Parliament, bringing in many new faces. Later this year, a new array of Commissioners will take up jobs in the European Commission. The third main player in the EU political system is the Council of the European Union, a more anonymous kind of body, which consists of a varying group of ministers from the 28 member states who meet to discuss key areas. It may be shadowy, but can provide important hints about what is happening behind the scenes in Brussels. For example, the Presidency of the Council, currently held by Italy (EU countries take it in turns), has just presented a " paper aimed at structuring the exchange of views on IPR enforcement " (pdf). It notes that the European Commission carried out a consultation on copyright recently, and comments that:That's undoubtedly true, as the public's massive response to the consultation confirmed. Sadly, though, the paper's "solutions" to updating copyright are basically straight out of the infamous Anti-Counterfeiting Trade Agreement (ACTA) we thought had been killed off in 2012. Here are the paper's first suggestions for how things could be updated and improved:As that indicates, there is the troubling suggestion that the metadata retained by ISPs and telecoms in the EU -- data that we were assured had to be kept, but only for use in the fight against terrorism -- might be handy for tracking down people who make unauthorized copies of copyrighted material. After all, if it's sitting there, why not use it? "In case of commercial scale infringements" is just a fig leaf. For ACTA, which the European Commission helped draft, the following dangerously broad definition of the term (pdf) was used:"Indirect economic or commercial advantage" includes just about everything. In that quoted section above, there's also a wonderful new euphemism for using intermediary liability to turn ISPs into the copyright police: "know your customers." The second suggestion builds on that idea:"Better involvement of intermediaries" - that's a close cousin of a phrase in ACTA:Suggestion three in the new paper is as follows:Maybe "fast track" means this idea from ACTA:Translated into English, that means allowing a court hearing without bothering to give the accused a chance to defend themselves -- that would certainly save time. Finally, we have this:Again, that seems to be a throwback to another section of ACTA:Although the phrasing may be a little different, it's striking how the same old bad ideas keep on turning up. It will be interesting to see how the new European Commission takes this forward -- although maybe "backward" would be a better description of where it is going.Follow me @glynmoody on Twitter or identi.ca , and +glynmoody on Google+

Filed Under: acta, copyright, enforcement, eu, eu commission, eu council, intellectual property