Leaked Draft Reveals EU Anti-Piracy Enforcement Plan

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A leaked document has revealed the EU Commission's plans for copyright in 2016. In addition to tackling the issue of content portability in the spring, the draft suggests the Commission will explore a "follow-the-money" approach to enforcement, clarify rules for identifying infringers, and examine the crosss-border application of injunctions.

The EU Commission is currently working on proposals for the modernization of copyright with the aim of providing a framework more suited to the digital age.

The EU’s plan was set to go public exactly a month from today but just before the weekend IPKat said it had obtained a leaked copy of the draft communication from a ‘Brussels insider’.

“EU copyright rules need to be adapted so that all market players and citizens can seize the opportunities of this new environment. A more European framework is needed to overcome fragmentation and frictions within a functioning single market,” the leaked draft reads.

The document, which could be subject to change before its release next month, advises that the Commission will issue legislative proposals for content portability during the Spring of 2016.

“As a first step, the Commission is presenting together with this Communication a proposal for a regulation on the ‘portability’ of online content services, to ensure that users who have subscribed to or acquired content in their home country can access it when they are temporarily in another Member State,” the report reads.

But in addition to making life easier for citizens, the Commission also wants to make life more difficult for pirates. Noting that creative rights have little value if they cannot be enforced, the Commission calls for a “balanced civil enforcement system” to enable copyright holders to fight infringement more cheaply and across borders.

“A ‘follow-the-money’ approach, which sees the involvement of different types of intermediary service providers, seems to be a particularly promising method that the Commission and Member States have started to apply in certain areas,” the draft reads.

“It can deprive those engaging in commercial infringements of the revenue streams (for example from consumer payments and advertising) emanating from their illegal activities, and therefore act as a deterrent.”

On this front the Commission says it intends to take immediate action to set up a “self-regulatory mechanism” with a view to reaching agreement next spring. While voluntary, the EU says the mechanism can be backed up by force if necessary.

“Codes of conduct at EU level could be backed by legislation, as required to ensure their full effectiveness,” the draft notes.

By the fall of next year the Commission says it will have assessed its options in respect of an amended legal framework covering a number of enforcement issues. No additional details are provided but one of the key items in the draft concerns the rules for the identification of infringers.

The document also highlights a need to address “the (cross-border) application of provisional and precautionary measures and injunctions”. Clarification is needed, but this appears to be a reference to EU-wide site blocking.

Furthermore, the EU indicates it will examine the rules for copyright takedowns and the potential for illicit content to be taken down and remain down.

“The Commission is also carrying out a comprehensive assessment and a public consultation on online platforms, which also covers ‘notice and action’ mechanisms and the issue of action remaining effective over time (the ‘take down and stay down’ principle),” the draft reads.

Finally, Julia Reda MEP is raising alarms over the Commission’s intent to clarify the legal definition of ‘communication to the public’ and of ‘making available’.

“The Commission is considering putting the simple act of linking to content under copyright protection,” Reda writes.

“This idea flies in the face of both existing interpretation and spirit of the law as well as common sense. Each weblink would become a legal landmine and would allow press publishers to hold every single actor on the Internet liable.”

The full document can be downloaded here.


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