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

from the forward-to-the-past dept

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:

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

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:

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.

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:

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

“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:

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.

“Better involvement of intermediaries” – that’s a close cousin of a phrase in ACTA:

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

Suggestion three in the new paper is as follows:

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

Maybe “fast track” means this idea from ACTA:

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

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:

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

Again, that seems to be a throwback to another section of ACTA:

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.

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.

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

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Anonymous Coward says:

perhaps the thing to find here is exactly who drafted this paper? i dont believe it has come from a group discussion, it has come from one person. then find out which body (the entertainment industries) told the person what terms and measures to include. rephrasing stuff to make it sound like new rather than revamped old doesn’t usually work. on top of that, why is this even allowed to be contemplated? when ACTA was kicked out it should have stopped all similar papers coming out in the future. if it’s the same restrictions, same measures just re-phrased, they shouldn’t be allowed back in, even for discussion!

Anonymous Coward says:

Re: It's a common tactic

There are two variations: you pretend to have changed something but the text is exactly the same (nobody will notice) OR you pretend to have improved the text when you have actually worsened it. The second variation is more common.
Then there are other tricks: you don’t call it ACTA 2.0 or change its name, you just include the same nasty provisions in another law which is seemingly completely different from ACTA. Or you incorporate those provisions into a treaty between nations which are so complex that nobody will realise that you are actually implementing ACTA in a more subtle way.

Anonymous Coward says:

Hehe, “the councils”. In reality COREPER is the council, absolutely, meant to only act on precise instructions from the national government, but in no way open and acting with a, b- and b agendas where most of them are kept just as, or more, hidden than ACTA approval in the fishery council…

When talking about the italian suggestion, it seems like water on the commissions mill, but given the throwback to ACTA, the parliament will hopefully look at the devil in the details. Unfortunately, these kinds of suggestions are prestige projects for the countries and breaking these standoffs are seen as a great achievement.

Having Italy putting its weight behind it and mister old fart in the commission having a “digital single market” commissioner – on top of the digital agenda retirement post for a person of absolutely no vision or interest in the area – as a second in charge indicates that these issues will be fought for heavily. Apparently they were waiting for a new team in the parliament to repush ACTA.

Anonymous Coward says:

Not in My EU

Names from idea that can absolutely not work, don’t even try: indicates that EU has been injected by ‘slightly untrustworthy, generally evil and absolutely insane creatures whose minds have been corrupted by Power and Control- mandate’.

On the second thought, Propaganda is used way more that you know only because it works.

Citizen of (censored)

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