ORGs response to EU consultation on the reform of IPRED
Our response is here. Apologies for the pdf formatting, as it is straight from the European Commission’s website.
We paste the raw text of our responses below for indexing by search engines. Please use the pdf to see the questions we are answering.
As you can see in the pdf, the questionnaire by the Commission targets people with direct experience of the enforcement process. This makes it difficult for public interest groups such as ORG to engage.
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We are mainly concerned with copyright in the digital environment. In this area there is a need for more evidence of the long term effects of enforcement on infringement. It seems that the availability of legitimate sources such as streaming services may have had a larger impact in reducing infringement. Specifically enforcement against end users and individual consumers has failed and future reforms of the rules should clearly steer away from criminalising ordinary citizens.
We would like to see a simplification of the enforcement regime with a single rule with clear and strong considerations on rights such as freedom of expression and privacy.
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Harmonisation of copyright enforcement cannot go further than copyright itself. Demands for extraterritorial applicability of inductive relief and other such proposals being circulated by certain groups put the cart before the horses. Given the current diversity of copyright regimes, specially on exceptions, we believe that enforcement requires contextualisation. Otherwise it is likely that we would see jurisdiction hopping in search for injunctions.
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The UK has seen extensive pre-action notices in intellectual property disputes. This system has been notably been abused to send threatening letters, infamously in the case of ACSLAw (Media CAT Ltd v Adams & Ors [2011] EWPCC 6). The firm was suspended for “speculative invoicing”: the sending of letters before action to thousands of internet subscribers whose internet connection is alleged to have been used for small-scale copyright infringement and whose names and addresses have been obtained from IPSs. The letters demanded excessive sums without trying to establish if the recipient is the person who caused the alleged losses. ACSLAw was pocketing over 50% of the monies involved.
British courts have since produced guidance on how to conduct these letters (Golden Eye (International) Ltd and others v Telefonica UK Ltd [2012] EWHC 723), which should not demand fixed sums or make any threats beyond taking people to court. This was the result of the participation of consumers groups in the procedures, which should be made easier in any future reform of enforcement.
The UK Digital Economy Act which came into force in 2010 provides for mass letters to be sent to individual infringers, as part of a “graduated response” approach, but disputes over costs have delayed its implementation. Research on this area seems to show that even if initially they manage to change user behaviour, over time such schemes may not be effective (DOI: 10.1016/j.jebo.2014.04.026)
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Mass identification of alleged infringers based on third party in the UK has led to severe privacy abuses. The firm ACS Law exposed online the personal information of thousands of alleged copyright infringers who had engaged in peer to peer file sharing. The firm was set to pay £200,000 but in the end was fined only £1,000 because it had ceased trading.
In the case of people accused of copyright infringements relating to pornographic materials there could be further issues around sexual life, a sensitive type of data receiving special protections, as “Misuse of sensitive data, such as health data or sexual orientation (e.g. if publicly revealed), may be irreversible and have long-term consequences for the individual as well as his social environment”. (http://ec.europa.eu/justice/data-protection/article-29/documentation/other-document/files/2011/2011_04_20_letter_artwp_mme_le_bail_directive_9546ec_annex1_en.pdf) .
Indeed the threat of publicity appears to have played a large role in the business model of speculative invoicing.
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In line with other human rights organisations we support the view that it is essential that the privacy rights of alleged copyrights infringers’ are taken into account when assessing the proportionality of an identification order (called Norwich Pharmacal Orders in the UK legal system).
We also support calls on the Commission to include an anonymous right of defence for alleged infringers in identification procedures under article 8 IPRED.
For example, in Google v. Brein before the Amsterdam Court of Appeal (ECLI:NL:RBDHA:2015:11408), where the intermediary was granted a fixed period to allow the user to anonymously provide reasoned objections to the disclosure of their personal information. Unfortunately, this course of action is not explicitly allowed by the Enforcement Directive, nor is it reflected in most Member State Implementations.
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The guiding principle of proportionality should guide any reforms: damage awards should not exceed demonstrable economic harm. The difficulty in making evidence based assessments of the actual values involved in online infringement tends to generate estimates of very high economic harms, easily in the millions.
If we look at estimates for commercial copyright and trade mark infringement or counterfeiting in physical goods we find proportional estimates:
R v Brayford (2011). Imported 25 tons of low-grade washing powder and nearly 3,000 counterfeit Persil boxes. Estimated that profit would have been about £20,000. 2 years’ imprisonment upheld on appeal.
R v Hatton (2008). Production of 20,000 counterfeit DVDs, defendant admitted selling for £2 to £5 each to resellers. 18 months’ imprisonment upheld on appeal.
R v Kirkwood (2006). About 2,500 DVDs with films, games and music seized. Some of the films were unrated pornography. Estimated equivalent retail value of material was £17,000. 30 months’ imprisonment reduced to 21 months on appeal.
In contrast, online estimates appear disproportionate. For example in the case of Anton Vickerman, who run the website SurfTheChannel. The prosecution claimed losses of between £52 and £198 million. The judge refused to settle on a specific figure but admitted “millions” and passed a 4 years sentence.
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The Manila Principles on Intermediary Liability (https://www.manilaprinciples.org) should guide any reforms. Online intermediaries have some roles to play, but we are extremely concerned by the trend to focus on intermediaries, which appear to be seen as the weakest link due to failures to fully satisfy demand from end users for accessible quality media and the availability of such materials outside official channels.
Limited intermediary liability is a central plank on the development of the current information society and a reversal here would have wider implications for the economy and fundamental human rights.
We find particularly worrying the so-called “follow the money” approach, where indirect ancillary services, such as domain registrars, advertisers or payment providers are brought into the enforcement framework.
In the UK, ads to allegedly infringing sites are restricted by the GPPs (good practice principles) for the trading of digital display advertising drafted by the Joint Industry Committee for Web Standards, an organisation created by the UK media industry. The GPP do not mention specific websites, but use the “likely” Infringing Website List (IWL). This is produced by the City of London Police unit responsible for IP protection (PIPCU, funded by the UK IP Office), who stresses that they do not interfere with ads. This way industry and the police pass each other the responsibility with the resulting lack of overall accountability and due process.