The European Commission is currently reviewing the Intellectual Property Rights Enforcement Directive. In its response to a public consultation, Bits of Freedom critically addresses several fundamental flaws in the analysis of the European Commission.
The report appears to be based on the assumption that the infringement of intellectual property rights on the internet is a growing problem for society which needs to be addressed by extending the possibilities of enforcement by rightsholders. Bits of Freedom fundamentally disagrees with this assumption:
There is no relevant analysis supporting the conclusion that infringement online is a growing problem for society. In fact, there are relevant studies which conclude that the societal effects are positive. We recommend to undertake an independent study on the societal effects of infringement online before developing further policy on this issue.
Even if this were a problem for society, the current enforcement practice regarding infringements online is already at odds with EU law and fundamental rights. We recommend to clarify that the “general monitoring”-prohibition in the E-Commerce Directive (“ECD”) extends to injunctions and that any restriction related to Artt. 12 to 14 ECD would also risk to amount to a general monitoring obligation. We also recommend to study the impact on fundamental rights of the enforcement practice in the EU and where necessary restrict the scope of enforcement possibilities envisaged in IPRED in light of the findings of such a study, especially with regard to individual internet users exchanging information without a commercial profit motive.
More fundamentally, Bits of Freedom is convinced that further repressive measures aimed at terminating and preventing non-commercial infringements online will not lead to a sustainable resolution of the tension between the internet and copyrights. We recommend addressing the core of the problem and investigating the extent to which material has been made available online by rightsholders. In addition, we recommend to investigate in what cases and how authors whose works are being used online should be remunerated.
Bits of Freedoms full analysis can be found here (PDF – 5 pages). In our piece, we endorse the response (PDF) to the consultation of our umbrella organisation European Digital Rights (EDRi). The submission of our French counterpart, La Quadrature du Net, is also worth reading.