IPR enforcement in the digital era - Tuesday, November 22 2011

Introduction

Thanks to the Internet, dissemination of copyrighted works has never been so easy. At the same time however, several studies have demonstrated the negative impact of piracy to the cultural and creative industries and to the economy altogether. The transfer of the European Observatory of Counterfeiting and Piracy to the OHIM will enable policymakers to dispose, in the future, of data on the effects of piracy that may not be put into question. In the meantime there is still a pressing need to act.

In its communication on a single market on IPR, the European Commission has singled out the review of the IPR Enforcement directive as an action to be undertaken in 2012.

Any legislative initiative should also take into account the fact that internet contributes heavily to the European economy; according to a recent study*, in France internet accounts for more than 3.5 per cent of GDP and created more than a million jobs in 2010 The results are equally impressive in other member States.

During this conference, we will have the opportunity to listen to Victoria Espinel, the US IP Enforcement coordinator, who will give us an outlook on the current state of play in the United States of IPR enforcement on the internet. We will also exchange our views with several associations and companies on the possible review of the IPR Enforcement directive and also on the specific changes that policymakers should bring about.

* McKinsey, Impact d'internet sur l'économie française, March 2011


Practical Information

Tuesday, November 22 from 12:30 to 14:30

Programme

12:00 Sandwich lunch

12:30 Opening by Angelika Schlunck, Director of the Representation of the free State of Bavaria to the EU
12:40 Welcome and State of play within EU by Marielle Gallo, Member of the European Parliament
12:55 The US perspective of IPR enforcement by Victoria Espinel, White House U.S. Intellectual Property Enforcement Coordinator
13:10 The review of the directive 2004/48 by Margot Fröhlinger, Director of IP DG Internal Market, European Commission

Q&A with policymakers

13:40 Stakeholders:

• GESAC (European Grouping of societies of Authors and composers), Véronique Desbrosses, Secretary General
• Google, Antoine Aubert, head of Brussels office
• INTA (International Trademarks Association), - Stacey King, Senior Digital and IP Counsel, Richemont International Limited
• UNI MEI, Johannes Studinger, Head of UNI MEI Media, Entertainment & Arts Sector of Union Network

Q&A

14:20 Final remarks by Angelika Niebler, Member of the European Parliament


Venue

Representation of the Free State of Bavaria to the EU
Rue Wiertz, 77 Brussels


Click on this link and you will find the keynote speech of Victoria Espinel and the short statement of Véronique Desbrosses.

Before the conference, we have kindly requested that our stakeholders reply to two questions on IPR Enforcement. The first one related to the recently adopted OECD framework for an open internet where an explicit reference to the protection of IPR has been made. The second question pertained to the voluntary agreements to curb online infringements that have been concluded in some Member States. Click on the link and you will find the answers of UNI MEI and GESAC. INTA referred to its position that can be found on its website. Google declined to reply.


Conclusions by Marielle Gallo

At the first conference of the IP Forum I wanted to avoid the usual heated debates on IPR enforcement on the internet by sticking to facts and figures. First of all, I presented some recent data on the impact of IPR enforcement measures, such as the HADOPI law, on piracy and on legal offers of digital services. Secondly, Europe must not be oblivious to the position of its biggest trade partners and in particular the United States, the homeland of both Hollywood and Silicon Valley. Finally, stakeholders must be placed at the heart of these questions as any solution has to be largely debated and take into account the rights and interests of everybody.

Can IPR enforcement measures curb illegal downloading? According to the last figures published by SNEP (Syndicat National de l'Edition Phonographique) the answer is yes.  In France, from October 2009, date of the vote of the Hadopi law, to December 2010, P2P lost 2.2 million users. At the same period, subscriptions to legal offers increased by 22.1%; 32.6% for video streaming, 14.3% for audio streaming and 19.4% for legal downloading. During the first semester 2011, the French digital market has been singled out as the one with the highest growth rate in front of the UK, Germany Spain and the USA.

Moreover, the European Union must pay particular attention to the solutions proposed by our trade partners. We had the opportunity during the conference to listen to Victoria Espinel who gave us an outlook of the "assertive and innovative approach to Internet enforcement" by the Obama administration.  This approach is based on 5 pillars; law enforcement, private sector cooperation, legislative reform, public awareness, and cooperation with trading partners. I would like to focus on the first two pillars. When it comes to law enforcement, we have learnt that the US authorities have seized 200 domain names due to criminal IP offenses. What is of paramount importance is that the Obama administration encourages the private sector to develop voluntary agreements. For instance, this summer an agreement has been reached with the 5 U.S. payment processors on a set of voluntary best practices while, at the same time, the music and film industry agreed with the major ISPs to curb online piracy.

Our stakeholders converged on a particular point; online IPR infringements must be stopped at the source. Google also pointed out that any review of the IPR Enforcement directive should not hamper the growth potential of the Internet economy. Stacey King gave a very interesting, although gloomy dimension of the problem. The new gTLDs will "broaden the space" and today we do not have at our disposal the necessary means to crackdown on rogue sites and to stop abuses.

In the light of this particularly rich and interesting debate, I believe the objective of the European policymakers should be twofold. First, we should contribute to the creation of a business friendly collective rights management framework that will make easier and cheaper to deliver pan-European licences for online content. Secondly, IP online infringements must be tackled; it is high time for the European Commission to come up with a proposal that will adapt the IPR Enforcement directive to the challenges of the online world.

In doing so, the European Commission has to follow the guidelines of the European Court of Justice (ECJ). The ECJ delivered recently two rulings setting out red lines when it comes to IPR enforcement and liability of intermediaries. In the case Scarlet/Sabam, the Court, drawing on the Promusicae case law, concluded that a system of filtering all electronic communications which applies indiscriminately to all the customers as a preventive measure for an unlimited period infringes the fundamental rights of users. Additionally, in the case L'Oreal/eBay, the Court held that even when an operator of the online marketplace has not played an active role, it cannot rely on the exemption from liability provided for in the e-commerce directive, if it should have realised that the offers were unlawful and, in the event of it being so aware, failed to act expeditiously.

In other terms, general monitoring of the internet/telecommunications is prohibited but impunity cannot be tolerated in the digital environment.