Germany: Auctioning an Opportunity to Shake Down Filesharers …
Over the last two weeks I have been catching up on developments in the copyright enforcement area with a view to writing another boring post about it. But an absurd and scandalous story from Germany requires an entry all to itself.
Abmahnkanzlei: Shock Troops of the Enforcement Machinery?
In Germany there exists a form of legal practice known as as an “Abmahnkanzlei“, which would literally be a legal practice which makes orders to cease, desist and compensate (Abmahnung). These have been employed by copyright owners as agents to pursue filesharers. The procedure is familiar: internet protocol addresses are collected through online monitoring; rightsholders or their agents seek a court order directing the identification of the subscriber names behind the IP address. At this point the abmahnkanzlei sends a letter to the subscriber demanding compensation and a written commitment to stop the infringing activity. The sum demanded varies according to the copyright owner involved. Apparently porn producers insist on more money than the music companies, which figures, given the potential to implicitly blackmail subscribers by revealing their identities and alleged sexual proclivities in court.
The online news portal Heise has now reported that in the last days one of the large abmahnkanzlei, Urmann + Collegen in Regensburg, has announced that it is auctioning off the right to pursue 70,000 subscribers who have already been mailed two demands and have refused to pay up. Within their system a first demand was for a sum of 650 euros. If no settlement was forthcoming, a second letter was sent demanding 1286 euros. These 70,000 letters thus have a notional value of 90 million euros. Presumably whatever amount is coerced through this sum is to be split between the issuers of the ‘warnings’ and the owners of the copyright.
An additional, and perverse, twist to this process is that there are firms specialising in contesting these claims, who offer to handle pending and future cases for a fee which ranges between 500 and 650 euros – and thousands of people have signed up. The whole setup has become a racket whose only beneficiaries apparently are lawyers.
In a hearing hosted by the European Commission last June, the Association of the German Internet Industry, ECO, reported that German Courts are now directing the release of up to 5000 subscriber identities in one hearing. They also said, and I will try and verify these figures, that ISPs are being required to identify 300,000 people per month. Obviously these are huge numbers, and one wonders why this is not a bigger issue in public discussion.
Whither Privacy?
One also wonders where the German Data Protection Authorities are in all this; in 2010 the Swiss Supreme Court ordered a company, Logistep, which does network monitoring for copyright owners with a view to instigating enforcement proceedings, was ordered to cease (see also analysis from a Swiss legal practice and Ars Technica). The case was taken by the Swiss Federal Data Protection agency. Switzerland of course is not in the EU, and the law is different, but there have been cases refusing to release subscriber information in other EU jurisdictions such as Austria and Spain.
In any case, the gigantic scale of this campaign perhaps provides another element of the explanation for the sharp increase in support for the Pirate Party. Despite it not having been a widely discussed topic during the election campaign, there are undoubtedly a lot of people who are furious about all this.
SABAM Knocked Out at the ECJ
The early winter sunshine is sweeter still since the announcement of the European court of Justice’s decision (full text) in the SABAM v Scarlet litigation yesterday afternoon.
This case began in 2004 with the Belgian copyright and collective rights organisation taking a legal action against the ISP Scarlet to implement measures to stop their users from violating copyright through use of p2p software. To this end they sought to oblige the ISP to institute a filtering system which would have intervened to terminate data transfers involving works identified as copyrighted.
Decisions in the Belgian courts went in SABAM’s favour, but no-one could come up with a feasible technical scheme capable of meeting the plaintiffs requirements. Eventually the national authority referred the matter to the ECJ.
The Legal Calculus
Argument at the ECJ centred around the following issues:
(1) Both Copyright directive and the Intellectual Property Enforcement Directive established that copyright owners should have access to injunctions as a means to halt ongoing infringements, the question was – and to some extent remains – to what extent and with what consequences.
(2) The eCommerce directive set out clear limitations to the liability of ISPs, including cases where they act as ‘mere conduit’ for data transactions in which they are not direct protagonists but merely instruments of their users. In addition to sveral enumerated safe harbours, the eCommerce directive also limits the legislative discretion of individual states as regards the obligations of ISPs in Article 15:
Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating unlawful activity.
(3) Monitoring users’ data traffic involves the processing of personal data as protected by European Data Protection directives, which consequently must be taken into consideration in assessing the validity of any proposed filtering scheme.
(4) Multiple rights and freedoms protected under the European Convention on Human rights and the Charter of Fundamental Rights of the European Union (which became part of EU law in 2009) are implicated in the adjudication. On one side the property rights of the copyright owners, on the other the rights of privacy and freedom of expression of internet users, and the freedom to conduct business of the ISP.
Round 1: The Advocate General’s opinion
Cases sent to the ECJ are first analysed by the office of the Advocate General, who produce an advisory opinion for the Court, which is not however bound by either its mode of analysis or conclusions. The examiner in this case was the spaniard Pedro Cruz Villalón. His attention focused on the question of the consistency of such injunctive relief with the Charter, and his conclusion was that it was noncompliant and in breach of the principle of legality on several counts. At the core of his opinion (in french) was a criticism of the general nature of the surveillance system sought by SABAM, its lack of proportionality and indefinite duration. Having resolved the question by reference to the Charter, he did not delve into the conflicting provisions of the different directives.
Round 2: The ECJ decision
The ECJ however elected to approach the matter the other way around, dealing first with the question of Article 15 of the eCommerce directive. An indication of the result is already provided by the framing given by the Judges to the proposed filtering system, which abounds with red flags:
29. … a system for filtering
– all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;– which applies indiscriminately to all its customers;
– as a preventive measure;
– exclusively at its expense; and
– for an unlimited period,
Indeed it only takes another six paragraphs for the scheme to be definitively struck out:
36. In that regard, the Court has already ruled that that prohibition applies in particular to national measures which would require an intermediary provider, such as an ISP, to actively monitor all the data of each of its customers in order to prevent any future infringement of intellectual-property rights. Furthermore, such a general monitoring obligation would be incompatible with Article 3 of Directive 2004/48, which states that the measures referred to by the directive must be fair and proportionate and must not be excessively costly (see L’Oréal and Others, paragraph 139).
The Judges then proceeded to deal with the vying rights and freedoms under the Charter.
43. The protection of the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected.
44 As paragraphs 62 to 68 of the judgment in Case C‑275/06 Promusicae [2008] ECR I‑271 make clear, the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights.
45 More specifically, it follows from paragraph 68 of that judgment that, in the context of measures adopted to protect copyright holders, national authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures.
46 Accordingly, in circumstances such as those in the main proceedings, national authorities and courts must, in particular, strike a fair balance between the protection of the intellectual property right enjoyed by copyright holders and that of the freedom to conduct a business enjoyed by operators such as ISPs pursuant to Article 16 of the Charter.
Reference to Article 16 caught my attention as it was not mentioned at all in the Advocate General’s opinion. In addition it is raised as the first countervailing factor weighing against any absolute vindication of the copyright owners’ rights. Next up are the rights of individual users:
50 Moreover, the effects of that injunction would not be limited to the ISP concerned, as the contested filtering system may also infringe the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively.
51 It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified.
52 Secondly, that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.
Ringside Reaction
SABAM have issued a press release with the somewhat misleadinbg title ‘Authors worried about the decision by the Court of Justice of the European Union’ (which authors exactly?), wherein they announced that they are going to lick their wounds in private and reflect on the options left open to them by the decision.
Meanwhile the IFPI took the opportunity to emphasise that the decision reiterated the sanctity of copyrights online and that the problem here was merely in the overbroad nature of the injunction sought by SABAM, and would not undermine either their three strikes schemes or pursuit of so-called rogue sites.
La Quadrature du Net hailed the decision:
At a time of all-out offensive in the war against culture sharing online, this decision suggests that censorship measures requested by the entertainment industry are disproportionate means to enforce an outdated copyright regime.
They also point to the more general landscape in which the decision occurs, specifically the current passage of the Anti Counterfeiting Trade Agreement and the upcoming consent vote regarding the Treaty at the European Parliament.
Naturally Belgacom, the current owners of Scarlet also expressed satisfaction with the result, which comes more generally at a time when rightsholders have been trying to corner ISPs into more intense policing of their users, an operation to which the European Commission has also been party.
It’s a Knock Out
In sum this is a rare occasion to celebrate as regards legal developments concerning online freedom. This decision will have an important impact on national jurisprudence throughout the Union, and will put pressure on legislators to tailor any further copyright enforcement measures with at least some regard to proportionality and fundamental rights. Of course there are other fronts to this battle, notably the current hysteria about so-called rogue sites. At a later point I will provide an EU-wide survey of the situation in that regard, and of course there is legislation pending on the same theme in the US.
For other coverage see Glyn Moody’s report, IP Kat, and the reaction of the European Digital Rights Initiative.
Pirate Berlin
Early last August Pirate Party posters appeared in large numbers throughout Berlin in anticipation of the city elections in mid-September. Since the Federal elections of 2009, where they reaped much media attention as new contenders, things had been quiet. On that occasion their final vote came in just under 2% nationally, but this concealed a vote in Berlin that was nearly double that level, with local support in the constituency of Friedrichshain/Kreuzberg reaching 6.2%, promising them seats in the next local election.
The 2009 campaign marked the first time that online public sphere began to be taken seriously as a factor in the vote, and through a combination of their intense social media presence, popularity amongst young voters as expressed in online polls and the general emphasis on network politics the PP became positioned as the ‘party of the internet’. Germany has a distinct engineering culture due to the scale and centrality of its technology-driven industries, and the PP drew heavily from this pool both in terms of activists and policy relevance, but this narrow techno-fetischism also constituted an inbuilt limitation to their appeal.
2011 was different. What was immediately striking about the PP’s poster campaign was its playful tone, self-irony and lack of focus-group sleekness. So much so, that the whole thing looked initially as if it might be a prank. Notable also was the expansion of the issues addressed: this was not an agenda of pure technophilia: posters laid out their support for a guaranteed basic income, decriminalisation of drugs, secularisation and increased transparency in political administration. In addition they proposed the introduction of city-wide free public transport, and set out alternative ideas about education in a country witnessing declining graduation at third level in comparison with the preceding generation.
“Why am I hanging here? You’re not going to vote anyway!”
How the Right Came Unstuck
I think it’s difficult to grasp what happened in Berlin without an understanding of the wider national political climate as well as local factors in the city itself. Since their election in 2009 the CDU/FDP coalition has met a series of defeats on a regional level. Two issues in particular have occupied public attention with devastating consequences for the government.
The first is the fight over the construction of a new central train station, Stuttgart 21, in the regional capital of Baden Wurttemberg. Opposition by a broad alliance of environmentalist groups culminated in the occupation of a green area, subsequently evicted amidst massive police violence. Clashes on demonstrations are not unusual in Germany, but on this occasion the victims were not principally anticapitalist youth, but middle class ‘civilians’ – with disastrous consequences for the local junta. As a result the CDU lost control for the region for the first time in more than half a century.
Then came the nuclear accident in Fukushima, which intensified an already stormy and longstanding political debate on nuclear energy, leading to the reversal of the government’s policy postponing reactor closures. The most immediate beneficiaries of this events were the Green Party which saw instant growth both at the polling booth and in opinion polls. Combined with an array of smaller controversies the governments popularity sank, with the SPD also putting a floor on their recent decline in support.
Wir Sind ein Volk: Ihr Seid ein Anderes!
courtesy of http://www.flickr.com/photos/bopuc/
“We are One People: You Are Another!”
Anti-gentrification poster on the streets of East Berlin, 2009
A reminder is in order here that the German economy has significantly outperformed the rest of Europe in the last couple of years. 1998-2003 was a period of recession, after which growth improved until 2009 where there was a sharp contraction in GNP of 5%, directly linked to the fall in global demand for Germany’s exports. Since then however, exports have recovered both to other EU states and emerging markets. Low levels of home ownership and the difficulty of accessing mortgage finance sheltered Germany from the financial events which have unfolded since 2007, although German banks and investment funds have been damaged due to investments made overseas, notably in the US sub-prime market.
What is poorly understood overseas however is the regional nature of the German economy, and the degree to which it continues to be centered on key nodes in former West Germany: a Munich-Nuremberg axis in Bavaria, Baden Wurttemberg, Frankfurt (finance), Koln, Hamburg and the Ruhrgebiet. Berlin is cut off both in terms of human capital and infrastructure from these areas, and struggles as a result. The local economy is heavily reliant on public sector employment in government and administration, tourism, and construction. While there is some software, pharmaceuticals and media production, they are in relative terms discrete employers. The biggest new employer is the German intelligence agency, the BND! Consequently local unemployment remains stubbornly high, over 13% according to official figures, and wages are low.
A corollary of the weak economic situation has been the relatively low cost of living, especially in terms of rental rates. Notoriously this has attracted a lot of under-remunerated cultural producers to make the city their home. But in the last four years rents have increased precipitously, between 15-20% annually in some centrally located areas, and when combined with weakened tenant protections and reduced investment in social housing; the result has been significant levels of displacement. New construction is occurring but is confined to apartments marketed to investors from other areas of the country and abroad. In fact this process has been underway since the 1990s, but had abated during the 1998-2003 slump – now it is back with renewed vigor. Local conflicts over urban development and planning have intensified and drawn in wider tranches of the population. The failure of the local administration – a coalition of the Social Democrats and die Linke – to respond to the resultant insecurity, combined with the poor economic opportunities available have opened the door to other forces. Previously the Greens would have been expected to clean up in this scenario, but they are perceived increasingly as the party of a lifestyle-defined middle class which has jettisoned its radical DNA, and in Berlin this doesn’t play as well compared to prosperous regions in the west.
In sum the conditions for a new protest party were ripe, and the Pirate Party were there to capitalise. They took more votes off die Linke proportionally than from anyone else, especially in the constituencies in the east. In areas characterised by a high level of conflict over housing such as Friedrichshain, they scored their highest results in absolute terms, hitting up to 17%. This area had been the scene of a massive campaign in defense of a squatted ‘house project’ (where people live collectively and conduct cultural and social activism), Liebig 14, which was evicted in February of this year. One element of the PP’s programme is to enable access to loans for tenants who want to buy their houses out from their owners rather than there being released on the open market. Meanwhile, on the border of Prenzlauer Berg and Wedding one of the city’s most popular parks is slated to be partially developed as condominiums, provoking anger and regular demonstrations in which the PP have been active. Along the site of the former wall, what was once social housing (built during the massive architectural project of the 1980s, the IBA) is in the process of reverting to private ownership, with increases in rents of up to 200%. This does not mean that the PP is a new Tenants Rights Party, but simply that the failure of the historical ‘alternative’ and ‘left’ parties has alienated many and opened the door for others.
Aftermath
What I want to get across is the complexity of trying to analyse the Pirate Party’s extraordinary result. While no enthusiast for electoral politics, I have been involved in the fight against intellectual property expansionism and have thus paid attention to the progress of the various PP’s since the start. But the copyright question which instigated the organisation’s creation was a footnote in the election. Nonetheless there has been enough happening in the copyright and surveillance realms to steel activists attracted by this issue. Germany, in fact, has had one of the most frantic enforcement campaigns in Europe in recent years, with the development of what is widely referred to as an enforcement industry where IT companies are contracted to trace those sharing files online so that lawyers can then make demands of ‘compensation’, an approach exemplified by companies such as Constantin GMBH, rights owners responsible for the famous sweep of Downfall videos from youtube. In October CDU politician Siegfried Krauder floated a proposal for a three strikes style law also in Germany, even though this would go against the coalition agreement made with the FDP (which contains a determined civil libertarian faction). Elsewhere, the campaign against intrusive surveillance was enlivened by revelations that police in Dresden engaged in generalised interception and parsing of mobile traffic and SMS during popular demonstrations against a neo-fascist rally in Dresden last winter.
The Pirates took 8.9% in the Berlin election. So unexpected was this that they cannot in fact fill all their seats. Every candidate for the City was elected, but several of them were also elected to the local councils in their areas, and due to the prohibition on dual-mandates some will go unfilled. Opinion polls have put them on 8% nationally, but it will be difficult to sustain this if they do not transform novelty into meaningful intervention. The crucial question is what would a meaningful form be. Events elsewhere such as the Occupy movement reflect a general distrust of the political system and its modes, a humor which arguably is analogous to the motivation driving the Pirate Party’s success. If this is so, then there is a case that the PP would be best served not by playing the Parliamentary game with too much earnestness, but rather should expose it and demonstrate the castrated notion of participation which it represents.
Following the election a debate kicked off in the TAZ newspaper regarding the left-wing credentials of the party, or lack thereof. Opinions vary, as do the self-descriptions of prominent party members. Current leader Sebastian Nerz is a former member of the conservative CDU, and the party also includes many former liberals; he prefers to charcterize it as a socially liberal progressive party. From the other side of the spectrum the Pirates have picked up members from all over the left, including a former chairperson and MEP of the Green Party, Angelika Beer, and former MP Herbert Rusche.
Parallels have been drawn between the struggle between ‘vollis‘ and ‘kernis‘ in the PP and the earlier fight in the Green Party between ‘realos‘ and ‘fundis‘. In the PP context this refers to a tension between those favouring a minimal program based on technological issues and those who want the party to develop a full programme, including the thorny issues around the social state. A congress in Bingen in 2010 grappled with these issues unsuccessfully, but the question was resolved at another meeting later that year in Chemnitz. On that occasion the membership endorsed a proposal to support a guaranteed income and to back the introduction of a statutory minimum wage in the interim. This move was actually opposed by the then leader Jens Seipenbusch. The result in Berlin clearly favours the more expansionist current in the organization.
On the back of their gains, however, the PP has now also made itself a target for more calculated attacks. The Greens and die Linke will be ruminating on how to deal with the threat they pose, with Renate Kunast (the local Green leader) quipping to a business audience before the election that they could be ‘rehabilitated’, and presumably co-opted. This is unsurprising, seeing as in absolute terms the PP took more voters from the Greens than any other party.
Subsequent attempts to smear them mediatically may not be unrelated. One instance of this has been the attempts to link their activists with the far-right NPD, on the ground that a couple of their members had a previous involvement in that organisation. Having seen Pirate Party members in Berlin on grassroots antifascist demonstrations in the city, inches from braying boneheads, I would give this no credence. In every political organization there are those with flawed pasts – it’s no grounds to censure them forever. But the circulation of this story speaks to the new seriousness with which the Pirate Party are being treated, and they can afford to be sanguine about it. As disreputable friends in Italy would say: molti nemici, molto onore – many enemies, much honour. 
Consultations, Coming and Going…
July has been a busy month.
Arrived in Berlin only to discover that two copyright consultations are taking place in Ireland – what excitement!: a proposition to introduce a ‘fair use’ clause to local legislation (rerunning the Hargreaves inquiry), and regarding an amendment designed to enable rightsholders to obtain injunctions against internet service providers where their infrastructure is allegedly being by users for infringing purposes.
Although sceptical about such processes, I had worked on a submission to the EU Commission about the Enforcement Directive earlier this year, so I did throw in a rushed contribution. But the technical nature of these mechanisms largely elides the really crucial questions. What sectors are truly dependent on copyright, rather than just happy to take advantage of it? How extensive and significant economically are these sectors? What are the costs imposed on cultural users and consumers as a result? What way do these rules shape what type of culture is produced and the organisation of the industries that produce them?
On a narrower level of economic development the issue is basic: how can it be that in a country like Ireland, where Google employ more than 2000 people, there is no explicit protection of search engines, nor for the innumerable ways of aggregating and reusing information – the basic operating space for technological invention, innovation and diffusion – from copyright liability.
‘Fair use’ in the US functions as an affirmative defense for exactly these type of cases where works produced produced for one purpose or market,are transformed into something entirely different. Fair use is a statutory, general, defense to copyright infringement, applied on a case by case basis which renders it flexible and adaptable to unforeseen circumstances.
The Hargreaves report in the UK ultimately opted against advising the creation of this defense – why? Their argument was that it would create so much uncertainty, that the greatest beneficiaries would be lawyers paid to decipher the ambiguity for the interests involved. Further, due to the restrictions of European laws, agreed to by member states in blissful ignorance of their repercussions, the latitude to create exceptions and exemptions to copyright is limited to a list of about fifteen enumerated cases. Thus the introduction of such defense would require action at the level of the EU: an obviously unenviable prospect. Puzzlingly Hargreaves proposed the creation instead of another new European exception which would encounter exactly the same type of political obstacles:
“We therefore recommend below that the Government should press at EU level for the introduction of an exception allowing uses of a work enabled by technology which do not directly trade on the underlying creative and expressive purpose of the work…”
Digital Opportunity, p.47
Apart from the bureaucratic barriers to to its creation, it is also, well, vague, so maybe the lawyers still have something to look forward to. Go figure.
Google is so naturalised, through incessant everyday use ,that it may appear absurd to suggest that it could be under legal threat. Yet a review of case law in both the US and the EU shows the extent of the legally-manufactured obstacles faced by the company; various aspects of their services (image search, youtube, google news) been condemned in Belgium, France, Germany and Italy, amongst others. The search giant, of course, has more than adequate legal and policy resources to protect itself. My concern is for the next generation technologies threatened by copyright regimes: without either deep pockets or the anthropological dividend of mass adoption, they will always be under threat from those who hold economic power now.
Meanwhile the media companies are desperate to ease their access to injunctions against anyone deemed to be a ‘contributor’ to copyright infringement. Friday last, Hollywood had a victory in the high court in London, securing an injunction against British Telecom, forcing them to deny their subscribers access to a site called Newzbin. Having already already lost a copyright action Newzbin was an easy target, but the precedent it sets is diabolical: innumerable online spaces contain activity that may be deemed infringing – should they all be shut down? Youtube and Vimeo too, as well as any site with the temerity to index torrents? And how will the Star Chamber necessary to determines a site’s bona fides be selected?
Securing a space for the experimentation in both engineering and culture, acknowledging that the changed nature of cultural production and the basic alphabet for technological innovation have the same root, should be the object of any changes made to copyright law. This means liberation from copyright, both for computer users with a new capacity to produce and distribute meaning, and for the innovation necessary to economic change.
Proposed amendment to Irish Copyright Law
Some months ago I wrote about the decision made in EMI V UPC in Ireland. In this case the music industry sought to force UPC to observe a private agreement made by the industry with another provider, Eircom, the former Irish Telecom monopoly, whereby users identified by music industry agents as infringing their copyrights would have their connections terminated after three alleged infractions.
EMI’s application failed. But ten days ago the Department of Enterprise and Innovation (the Irish ministry with legislative initiative in the sector), published a draft amendment to the Copyright Act of 2000, in an apparent attempt to provide the legislative basis for such judicial orders. A consultation period regarding the proposed amendment will continue until the end of July
Subsequent to his decsion in EMI v UPC, I had the chance to listen to the judge, Peter Charleston, give his impressions about the issues. He was thoughtful, but was also obviously somewhat at sea in a culture whose nuances he did not quite grasp. He recounted how the Irish police had visited him after the judgement, to warn him that his decision had displeased people on the internet in places like Kazakhstan and Uzbekhistan, and that they might seek revenge by stealing his credit card numbers or planting child pornography on his computer.
As he told this story I couldn’t judge whether he was being earnest or sarcastic. Perhaps Anonymous has managed to psych out the Irish police, as well as fooling them with a bit of proxying. More on this tomorrow, for now here is the text of the proposed amendment.
Draft Regulations
S.I. No. of 2011
European Communities (Copyright and Related Rights) Regulations 2011.
I, Richard Bruton, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [1], as amended by Corrigendum[2], hereby make the following Regulations:
1. These Regulations may be cited as the European Communities (Copyright and Related Rights) Regulations 2011.
2. In these Regulations -
“Act of 2000” means the Copyright and Related Rights Act 2000 (No. 28 of 2000);
“Directive” means Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society as amended by Corrigendum
3. The Act of 2000 is hereby amended by the insertion of the following subsection after subsection (5) of section 40:
(5A)(a) without prejudice to subsections (3) and (4), the owner of the copyright in the work concerned may apply to the High Court for an injunction against a person who provides facilities referred to in subsection (3) where those facilities are being used by one or more third parties to infringe the copyright in that work.
(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any third party likely to be affected and the court shall make such directions (including, where appropriate, a direction requiring a third party to be put on notice of the application) as the court may deem necessary or appropriate in all the circumstances.
4.The Act of 2000 is hereby amended by the insertion of the following subsection after subsection (9) of section 205:
(9A)(a) without prejudice to subsections (7) and (8), the rightsowner may apply to the High Court for an injunction against a person who provides facilities referred to in subsection (7) where those facilities are used by one or more third parties to infringe any of the rights referred to in Parts III and IV.
(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any third party likely to be affected and the court shall make such directions (including, where appropriate, a direction requiring a third party to be put on notice of the application) as the court may deem necessary or appropriate in all the circumstances.
GIVEN under my Official Seal,
This day of 2011
Minister for Jobs, Enterprise and Innovation
[1] OJ No. L167, 22.6.2001, p. 10[2] OJ No. L 006 10.1.2002 p.70
Jean Bergevin Lands EU IP Enforcement Unit
After the controversy surrounding the appointment of Maria Martin Prat as head of the Copyright Unit at DG Markt, there has been less attention to another personnel change. Alvydas Stancikas, former head of Unit D3 on Enforcement, has headed off for other pastures to be replaced by Jean Bergevin. Tillman Lueder, incidentally, has been moved to the financial services directorate as head of unit for Asset Management. What a rum place the Commission is; staff who spend time years getting to grips with technical fields then get summarily redeployed in a totally different area – very logical!
Bergevin is an economist by background and was one of the main designers of the ECommerce Directive, and most recently head of unit E2, focused on services and including areas such as gambling and gaming.
His appointment suggests two things to me. Firstly it is perhaps welcome to have someone with the tools to think, if inclined, about intellectual property in a wider economic context as opposed to treating it as a good in itself (a problem especially with the lawyers). Secondly, as someone with significant experience in the design and management of directives, and specifically the ECommerce directive, his arrival may mean that they are going to get serious about IPRED 2, not least as it will have a an interface with the provisions limiting liability for ‘Information Society Service Providers’ set out in the aforementioned directive. You can read his take on intermediary liability here.
On June 7th in Brussels there will be a public hearing on “Directive 2004/48/EC on the enforcement of intellectual property rights: Challenges posed by the digital environment”, where there is scheduled to be a presentation by Unit D3, so we will soon get an idea of the flavour which Bergevin will bring to the debate.
His former unit also handled the 2010 consultation on the E-Commerce Directive which was criticised for its resistance to incorporating the views of NGO and user groups around the broader questions at stake in filtering and monitoring of online services.
Hargreaves Review: A Spark in the Dark?
A week of sunshine in Florence, another week spoiled by the effusions of the European Union’s copyright vampires. Yes, that’s right, the music industry are back feeling chipper, this time with the news that the Danish government, which had previously been blocking the extension of the duration of copyright in sound recordings from 50 to 70, or even 95 years, has now reneged on their stance. This means the debate will recommence and the directive will go forward to the next stage…
Now for something more positive. In November, Toryboy David Cameron announced the launch of an inquiry into ‘intellectual property and growth’, premised on the concern that the current copyright regime might be impeding the UK from developing innovative companies like Google. Thus one of the directions to be investigated was the possibility of developing a broad fair use defense which would protect transformative uses, like that which exists in the US and which the big G has been able to take useful recourse to on any number of occasions. Of course ungenerous individuals like the record industry’s Alan Batt ascribe all this to the fact that one of his senior advisers, Steve Hilton is married to Google’s European head of communications, Rachel Whetstone. Obviously an unfounded suggestion of no merit, politics couldn’t possibly function like that, could it?
Former journalist and erstwhile professor of Digital Economy Ian Hargreaves was appointed to head up the Commission. Amongst his colleagues on the Commission is Jamie Boyle, an emigre Scot who has been at the forefront of IP criticism for twenty years, and author of one of the classic texts in the area: Shamans, Software and Spleens. Jamie also writes a column for the Financial Times on these subjects, and has turned it into a useful platform for demanding that changes in IP law be based on an evidence-based argument rather than on hysterical rhetoric or the power of lobbying. Of course he’s a bit mad, because important political decisions couldn’t really be made like that could they?
Five months thus was spent collecting submissions and ‘evidence’, and it makes for interesting reading if you have the patience – there were over four hundred submissions, and that from the Open Rights Group alone is 84 pages long. The various copyright industry trade associations pitched in with a lot of documentation as well. Google commissioned a report on the impact of copyright law on digital SME’s as well as a position paper of their own. On the other hand Getty images made a submission that wasn’t so enthusiastic about reform, but then they think that IP is the oil of the 21st century…
The report is due at the end of April, and should be pretty interesting. I have been arguing for some time that pushing on the fair use/dealing question could be fertile for copyright critics as it’s one of the areas where cost to innovation can be illustrated most clearly. Furthermore there are precedents for these type of propositions receiving support from other quarters. In recent years both the IVIR study on the EU Copyright Acquis and the UK’s Gower Commission floated/recommended the creation of such a defense, and as the nasty rumours about Google demonstrate there are signals that it has support in some powerful business circles. A sample of the debate engendered can be gleaned from a podcast produced by the RSA on the occasion of a public discussion organised on the topic of the review,
As i mentioned in my post about Ireland a few weeks ago, a similar proposal is afloat there as well. What remains to be seen is whether this would require an EU Directive. The problem derives from Directive of 2001/29 on Copyright which contained an exhaustive list of all exceptions and amongst them there is no mention of ‘transformative use’. In the Uk ‘fair dealing’ has traditionally covered the use of materials and commentary, thereby often effectively protecting a sub-section of cultural uses, but commercial uses can’t be shoehorned into that. In any case, it would be healthy to see the European debate on copyright shift its axis towards such questions. Needless to say the content industries will fight such a move tooth and nail.
Revolving Door Between Commission and Copyright Industry?
Unconfirmed reports claim that Maria Martin-Prat is to succeed Tilman Lueder as head of Directorate unit D1 at the European Commission, responsible for copyright policy. Martin-Prat took a sabbatical between 2000 and 2004 to work for the International Federation of the Phonographic Industry. As yet there has been no official confirmation, but the news is being relayed by french webzine PCinpact, Pirate Party MEP Christian Engstrom and consumer organization KEI (which includes a precis on the positions expressed by her whilst working for the IFPI such as her aggressive opposition to private copy rules). Being a high level appointment, i presume the decision was in the hands of Commissioner Michel Barnier.
People are understandably outraged at the appointment. While there is no question as regards her suitability to work for the Commission in general, it is grotesque that she should be put in charge of a policy unit in an area where she was previously a paid lobbyist. She is currently head of Directorate Unit E1, concerned with the Services Directive.
Whilst web commentary presents her as ringmaster for the new Enforcement Directive (IPRED2), I’m not so sure. As I wrote in February, there is now a unit dedicated specifically to Enforcement, headed by Alvydas Stancikas. His unit ran the legal sub-committee formed to report on the first IPRED and suggest modifications. Head of Directorate Margot Fröhlinger has also been prominent in the enforcement field.
Tilman Lueder was a pretty entertaining guy, rather wry, who also expressed some scepticism about the direction of copyright policy in recent years, pointing out the impossibility, for example, of the Google Books initiative in the EU due to the lack of a general fair use defense. Apparently he’s off to China.
EU Contracts RAND for Piracy & Counterfeiting Study
Much of the EU’s output is not the work of officials but rather of thousands of firms contracted per project. Tender reference MARKT/2010/03/D requested proposals for:
A study to assess the scope, scale and impact of counterfeiting and piracy in the internal market, through a defined methodology for collecting, analysing and comparing data.
This study will be the flagship publication of the European Piracy and Counterfeiting Observatory. The tender process concluded in December and the winner was announced in January: the RAND Corporation (UK), and they will be paid half a million euros for their labours.
RAND has a certain fame as the birthplace of much of modern game theory under John Nash, and the doctrine of nuclear deterrence through mutually assured destruction (MAD). Launched an part of the cold-war security apparatus, RAND is now a massive organization heavily focussed on statistics and modeling for the devleopment of policy recommendations, often in ‘public safety’ fields.
Their selection warrants unease because although they would not be regarded as IP specialists, they do have form: in 2009, their US organization produced a lengthy report ‘Film Piracy, Organized Crime, and Terrorism’. This study was financed by the Motion Picture Association, and much of the documentation compiled was assembled by a consultant on ‘organized crime’ employed by the MPA. RAND did at least disclose the relationship with a vested interest.
Read more »
Analysis of the IP Enforcement Directive Report
My intent initially was to publish this in January, but as the preceding posts make clear, there was considerable digging to be done to get a better picture of the context. In what follows, I begin with some comments with regard to shaky basis for the enforcement project, and then move on to a more detailed review of the Commission’s report.
1. The most noteworthy element of the Commission’s Report on the IP Enforcement Directive is what is absent. The Directive itself mandated the review, under Article 18, titled ‘Assessment’:
Three years after the date laid down in Article 20(1), each Member State shall submit to the Commission a report on the
implementation of this Directive.On the basis of those reports, the Commission shall draw up a report on the application of this Directive, including an assessment of the effectiveness of the measures taken, as well as an evaluation of its impact on innovation and the development of the information society (my emphasis).
Those interested in reading about ‘impact on innovation and the development of the information society’ will be disappointed, as such a section does not exist. Late transposition by several member states is offered as explanation for its absence. Yet this tardiness was no obstacle to a commentary on the efficacy of the Directive’s enforcement measures. A strange anomaly, but easily explained:
“… in the context of the European Observatory on Counterfeiting and Piracy, DG Internal Market and Services works with experts from the private sector to assess the application of the Directive and to complete the information received from the Member States.”
Commission Staff Working Document, p.5 (hereinafter CSWD)
So we’re in good hands. Elsewhere the Report relies on work commissioned by copyright industry players in support of its assertions, such as that produced by Tera consultants, whose methodology was questioned by the Social Sciences Research Network (SSRN).
Read more »
Confusion and Dismay Strike EU Enforcement Overlords
The rather boring series of posts recently was triggered by the announcement last December of a consultation on the review of the Intellectual Property Enforcement Directive (IPRED 1) passed in 2004. Closing date for submissions is next week, March 31st. Before continuing with an analysis of the review and a summary of my concerns, two recent incidents are worth noting.
1. Michel Barnier’s Letter to Françoise Castex & Stavros Lambrinidis
In response to a written question from two MEPs about the ‘stakeholders dialogue on illegal uploading and downloading’, reported here, Commissioner Barnier of Internal Market responded with a letter on March 7th. Therein he states:
“In conformity with the Commission’s “Better Regulation” initiative, a public consultation has been launched on the Report of the IP Enforcement Directive, adopted by the Commission at the end of 2010. Participants in the stakeholders dialogue do not benefit from a preferential position during this consultation.”
(my trans.)
Regular meetings took place between the private sector and Commission officials for the preceding year and a half; the ‘stakeholders dialogue’ was held almost monthly. In addition there was also the of ‘legal sub-committee‘, representing the same sector of rightsholders (but with less interference from those pesky Telcos and ISPs). The contents of the Report mirror the subjects discussed at those meetings. so much is in fact acknowledged in Annex 2 of the Commission Staff Working document relating to the methodology of the review:
“Apart from the information contained in these reports, the Commission did not receive a substantial amount of additional information fromthe Member States’ authorities, neither during the implementation period, nor after the transposition of the Directive into the national law. As a result, and because of the reasons mentioned above, the information received had to be complemented from other sources, in particular through consultation with rightholders, and in particular through the consultation of legal experts from the private sector who meet regularly in the legal subgroup that has been formed in the context of the European Observatory on Counterfeiting and Piracy.”
So is it the case that the chance to continuously inject opinion and information during a documents assembly does not constitute ‘a preferential position’? Or was it just a matter of judicious reference only to the stakeholders dialogue, with the hope that the legal sub-committee (see details) might be forgotten?
He also claimed that Data Protection officials were present at any meetings where the identification of users by means of their IP address was discussed, and while I don’t know it for a fact, I would be interested in hearing if that was the case in February, April and July 2010 when these matters were discussed in the stakeholders dialogue. Reports I have read of these meetings are strangely omit to make any mention of their presence.
2. Fröhlinger Calls Halt
Better still, the very next day, Margot Fröhlinger, titular head of the stakeholders dialogue wrote to announce that it was over! Her apportionment of the responsibility of the blame is rather vague, as she bemoans how:
“An exchange of ideas on possible joint actions to promote access to legal offers and on user awareness could have brought new insights on how to assist consumers to legally enjoy premium content.”
Schade. Apparently some stakeholders are…
…less willing to continue with the dialogue. These stakeholders perceive the format of the stakeholder’s Dialogue, as well as its timing, as not appropriate and as not useful.
Which is just plain unsporting of them if you ask me. Presumably the stakeholders referred to are the ISPs and Telcos, although that’s a bit of deductive work on my part: consumers and users groups never participated, therefore they couldn’t leave; the content industry doesn’t pass up a chance to hang with their chums in the Commission.
Interestingly her letter also announces the intention to ‘reach out to the general public, through additional hearings, in order to take account of the public interest, to the maximum extent possible.’ Does that mean the consultation will be extended beyond March 31st?
Other views/responses: read Iptegrity’s take on events. Likewise PCimpact published a response (in French) from Jerome Zimmerman of La Quadrature du Net.
… and it Felt Like a Kiss? EU IP Expansionism Abroad
Due to its role in the advancement of of entertainment and pharmaceutical interests within the GATT-TRIPS negotiations of the 1980s, the United States is typically assigned the role of bully in the international intellectual property sphere (for an excellent account see Drahos and Braithwaite’s “Information Feudalism”). Viewed in combination with its bilateral trade agreements, foisting stringent IP rules on smaller, poorer nations, this is somewhat understandable. But such a reading obscures the role of the European Union. Since the 1980s, key business organizations within the EU such as UNICE have functioned as a key vector for the same policy messages. In more recent times these ideas have been fully integrated into numerous aspects of institutional activity at an EU level. In what follows I will outline some developments at the level of trade policy since 2002.
The new phase was confirmed in a 2004 communication from the Commission Communication “Strategy for the enforcement of intellectual property rights in third countries“ (hereinafter Strategy), which listed eight elements considered essential to the campaign. Several of these recall practices long established in the US. The thrust of the strategy was confirmed in a major policy document issued by DG Trade in autumn 2006, “Global Europe: Competing in the World”, regarded as signalling the relaunch of a bilateral approach to trade negotiation, and marking the dimming of the multilateral phase which in the IPR sphere produced both TRIPS and the two treaties (WCT and WPPT) at WIPO in 1996.
Pursuing the New Approach
1. Watch Lists
The first task defined in the Strategy is the identification of ‘priority countries’, analogous to the s.301 report produced annually since the 1980s by USTR, deemed the source of egregious infringements of European rightsholders.
Read more »
Closed Door Policy Shaping at the ECPO
in July 2009, three months after the McCreevy’s announcement of the European Counterfeiting and Piracy Observatory (ECPO), a ‘stakeholder dialogue on illegal up and downloading’ was launched under its auspices and the direction of Margot Fröhlinger, Director for Knowledge-based Economy at DG Internal Market.
The goal was to achieve an accommodation between content owners and the infrastructural intermediaries. From the beginning the Commission have indicated that should the parties fail to come to voluntary agreements, the EC will amend one of its directives and impose a solution: E-commerce Directive (2000/31), the Infosoc Directive ( 2001/29) or the Enforcement Directive (2004/48).
Users and Consumers Missing from the Equation
Representatives of media companies, trade associations, collecting societies and ISPs have been involved in the monthly meetings. European Consumer group BEUC refused to participate, and, whether for wont of an invitation or lack of interest, no organization representing consumer or user interests was involved.
Read more »
Il Badalone; Brunnelleschi and an Early Patent
Normal service on boring enforcement related matters will resume later today, in the meantilme a little history. The initial draft stated the Badalone patent was the world’s first, this turns out to be incorrect, in a variety of ways! On a purely formal level, the first patent was granted to Francisco Petri in 1416 for the fulling of wool and was awarded in Venice.
*****
Having been in Florence for the last months, I discovered that it was the site of what was apparently the world’s first patents: a boat design created in 1421 by the builder of the Duomo’s famous cuploa, Filippo Brunelleschi, and christened “Il Badalone”. We don’t have the detail of the design, but thee is an image by Taccola in his book De Ingenis.
Il Badalone from Taccola's De ingenis
Ireland: Three Strikes and Fair Use
Last week a chill ran through the irish blogosphere: former Green party minister Eamonn Ryan suggested that the outgoing Fianna Fail administration might introduce three strikes/’graduated response’ against file-sharing just as they were being kicked unceremoniously out of power. How would they do that? A statutory instrument, a diabolical device enabling the introduction by the executive of secondary legislation, based on a prior legislative act (in this case the Copyright Act as amended), without having to debate or pass it in the Dail (Parliament). Back-door legislation, in other words. This threat was quickly disavowed by the relevant minister, Mary Hanafin (who lost her seat anyway in the subsequent election). Alas this may not end the matter: the new senior government partner Fine Gael, are suspected to be favorable to a three strikes style solution.
Recent History of Online Copyright Shenanigans in Ireland…
The record companies first went on the offensive in 2005. That year the Irish Recorded Music Association (representing EMI, Warner et al.) sought and obtained a high court order to identify 17 individuals observed allegedly sharing copyrighted works (via their internet protocol addresses). Two further batches of identifications were granted in 2006 and 2007 against an additional 72 people, opening the way to civil infringement prosecution. According to IRMA defendants agreed to pay the plaintiffs around 2,500 euros each to settle out of court.
In March 2008 IRMA initiated action against the former telecoms monopoly Eircom, the largest supplier of broadband in Ireland, presumably based on a theory of contributory liability. The year before a Belgian collecting society had won a decision obliging an ISP to install filtering software in order to prevent copyright infringement. That case, Sabam v Scarlet was later referred to the European Court of Justice and a decision on the issue is expected this autumn.
Rather than confront this pressure in court, Eircom agreed to enter into a voluntary agreement with the music companies, whereby the ISP would take action against users identified by the plaintiff companies as having infringed their works. IRMA committed themselves to negotiating similar agreements with other ISPs so that Eircom would not be put at a competitive disadvantage due to their collaboration. That summer IRMA also sought a court order obliging Eircom to cut off access to the Pirate Bay, an application which was not opposed by the provider, and duly granted that September.
Concerns over the Data Protection aspects of the Eircom/IRMA agreement, the settlement was referred back to the High Court in April 2010, when it was given the green light by Judge Charleton. In the meantime other ISPs were proving to be less accommodating to IRMA’S demands, especially UPC, owner of a cable networks and formerly know as NTL. They refused either to block access ot the Pirate Bay or to make a private agreement against their users interests with IRMA. Predictably this ended up in court last October. The result was resounding victory for UPC. Justice Charleton acknowledged that there was nothing in Irish law requiring the ISPs to police their users in this way. ISPs are obviously ‘mere conduits’ for data operations, do not have any role in executing infringing activity, and are consequently protected from liability under the safe harbours for service providers under article 12 of the EU ECommerce Directive. He also conceded that there was no legal basis for grant of a blocking order as regards the Pirate Bay, and underlined that his previous decision to the contrary resulted from the fact that Eircom had not opposed the previous order nor seen fit to make any argument against it.
There is also an interesting business background to this series of events: Eircom have been haemorrhaging customers at a rapid pace, according to some estimates 1000 users per month. In the meantime UPC increased their number of phone subscribers by 60% last year. How many of those customers were attracted by the stance taken by UPC on users’ rights? Impossible to say, but it cannot have been irrelevant.
Meanwhile Eircom are having serious difficulty managing their debt levels and have warned that they may breach their covenants. Sad to say, but it’s hard not to feel some glee at their predicament; the highest line rental charge in Europe, negligible investment in the infrastructure, pathetic service and to cap it all, an unwillingness to defend their own customers legal interests in court against an industry that they were getting into bed with.
Given the recent scare, it is good to hear that there is now a ‘free culture’ group also in Ireland, launched on the initiative of Kevin Flanagan who I met at the last international meeting of EXGAE/LaEx in Barcelona in late October. They add some more attentive eyes to the trojan efforts of the people at Digital Rights Ireland, sentinels of digital civil liberties in Ireland…
.. and finishing on a Bizarrely Positive Note…
Fine Gael for Fair Use?
This whole palaver roused my curiosity about current goings on in matters copyright in Ireland. And it was with some astonishment that I discovered that Fine Gael (the victorious party in last week’s election) have at least one decent policy: it seems that they are proposing a pan-European fair use defense. Surprised as I was at first, there is a logic to it, given that Google employ over 2000 people in Dublin and the technology sector (largely composed of US multinationals) remains one of the few parts of the economy to continue performing.
Now there has been endless blather as regards the ‘knowledge economy’ in Ireland over the years, so serious scepticism is warranted (the persistence of substandard connectivity is a monument to broken promises of shiny futures past), but on copyright flexibility at least they seem to be tiliting the right way. I read that DRI organised a day school on these themes at Google recently, it seems that some of that work may have delivered a yield. Fair play.
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Recent
- Germany: Auctioning an Opportunity to Shake Down Filesharers …
- SABAM Knocked Out at the ECJ
- Pirate Berlin
- Consultations, Coming and Going…
- Proposed amendment to Irish Copyright Law
- Jean Bergevin Lands EU IP Enforcement Unit
- Hargreaves Review: A Spark in the Dark?
- Revolving Door Between Commission and Copyright Industry?
- EU Contracts RAND for Piracy & Counterfeiting Study
- Analysis of the IP Enforcement Directive Report
- Confusion and Dismay Strike EU Enforcement Overlords
- … and it Felt Like a Kiss? EU IP Expansionism Abroad
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