Comments on EC report on IPR enforcement

EUROPEAN COMMISSION REPORT ON INTELLECTUAL PROPERTY RIGHTS ENFORCEMENT

Observations by David Hammerstein, TransAtlantic Consumer Dialogue

1.  TACD points out that in the  evaluation of the effectiveness of intellectual property rights enforcement the European Commission text does not distinguish between “counterfeiting” or “piracy” of physical goods and copyright infringements online.   This generalized consideration of patent, copyright and trademark infringements of material and intangible products with IPR protection with the same criteria is a serious methodological flaw that obscures the major differences between goods of a very different nature.  The European Commission should clarify if it expects to apply the same IPR enforcement rules of the physical world to ideas, music, images and words that can be easily reproduced at a very marginal cost as the rules applied to manufactured goods that are produced with raw materials and generated through a number of transformative industrial processes. If this is the case, the European Commission should make sure an independent evaluation studies the consequences of applying this broad “one size fits all” approach. TACD has serious doubts concerning this methodology and the scope of the IPR strategy proposed.

2. TACD observes that the EC report IPR enforcement is  based on a number of “given premises” possibly evident to the authors but  that are not backed up with independent, empirical evidence.   This report assumes the massive social damage and generally broad economic losses provoked by online IPR infringement. TACD believes that the methodology used to evaluate the economic consequences of digital piracy should be complex, broadly considered in the economy as a whole and placed within the context of a fact-based consideration of the social, cultural and economic effectiveness of IPR enforcement measures, now and in the future.

3. TACD believes that  there should be no revision of the IPRED Directive before an overall analysis of the impact on innovation and the development of the information society is carried out.

4. TACD calls upon the European Commission to clarify and harmonize the notion of “commercial scale” with the aim of clearly circumscribing it to willful, large scale IPR infringements carried out by entities acting for financial gains and to markedly distinguish “commercial scale” from the simple, unauthorized use of copyright-protected by individual internet users.

5. . TACD believes that the legitimacy and credibility of present and future IPR enforcement measures demand that the European Commission establishes clear and fair private copyright flexibilities, exceptions and limitations within the EU and globally through the World Intellectual Property Organization.  TACD calls upon the EC to propose necessary reforms and flexibilities in EU copyright law in order to enhance respect for the law, to promote new models of innovation and strengthen broad social access to  all kinds of knowledge.  In particular, TACD calls upon the EC and the EU Council to reconsider its opposition to a WIPO Treaty for the Visually Impaired and other Print-disabled persons.

6.  TACD reaffirms its commitment to privacy and the protection of personal data in the digital sphere and  considers that IP addresses should only be disclosed to public law enforcement authorities when requested by a competent judicial authority.

7. TACD does not accept the promotion of voluntary “codes of conduct” in the protection of fundamental rights. TACD does not consider “Self-regulation” the best option when privacy, data protection and freedom of speech are at stake.

8. .  TACD rejects any proposal that would directly or indirectly increase Internet Service Provider liability or other “intermediary liability” in questions of IPR enforcement. TACD seriously questions proposals that would possibly weaken the “mere conduit” principle of the EU´s E-commerce Directive, undermine net neutrality or convert telecommunication servers into “digital police”.

9.  TACD considers that the important issue of access to orphan works should be considered within the context of IPR enforcement evaluation considering that enforcement measures such as injunctions, damages and other remedies could be having a negative impact on the accessibility to historic cultural works that are either out of print or whose authors  cannot be located.

10.  TACD considers that the credibility and legitimacy of IPR enforcement needs to be built on social comprehension and acceptance. This is not the case at present. EU IPR Laws that are so widely violated by millions of Europeans cannot be made socially acceptable by only increasing repressive enforcement measures. The reform of copyright laws, the promotion of new business models and the offering of lower prices for cultural goods is the best policy for creators and consumers.