European Commission: “Notice and action” and stronger civil law enforcement of IP rights

The European Commission released a (provisional) communication with suggestions to boost Europe’s e-commerce. Below are some outtakes.

No need for revision of the E-commerce Directive. Liability of online intermediaries needs clarification and better implementation

The Directive on Electronic Commerce removed a series of obstacles to crossborder online services. It is crucial to legal certainty and confidence for both consumers and businesses. Its internal market clause, which states that the Member States may not restrict the freedom to provide information-society services from another Member State, is the cornerstone of the Digital Single Market. The consultations and analyses carried out indicate that a revision of the Directive is not required at this stage. It is, however, necessary to improve the implementation of the Directive (in particular through better administrative cooperation with the Member States and an in-depth evaluation of the implementation of the Directive), provide clarification, for example concerning the liability of intermediary internet providers, and take the additional measures needed to achieve the Directive’s full potential, as identified in the current action plan. Recourse to the IMI system, already in place for other European legislative instruments, could facilitate administrative cooperation between Member States when it comes to enforcing the e-commerce Directive.

Notice and action

The mechanisms to stop abuse and illegal information must therefore be made more efficient, within a framework which guarantees legal certainty, the proportionality of the rules governing businesses and respect for fundamental rights. In the Annex, the European Commission describes in detail the differing interpretations which are at the root of the above-mentioned problems. In view of the growing volume of statutory and case-law in the Member States, it now appears necessary to set up a horizontal European framework for notice and action procedures.*

* The notice and action procedures are those followed by the intermediary internet providers for the purpose of combating illegal content upon receipt of notification. The intermediary may, for example, take down illegal content, block it, or request that it be voluntarily taken down by the persons who posted it online. This initiative should encourage rather than undermine more detailed initiatives in certain fields. For instance, the European Protocol signed in May 2011 between major rights-holders and internet platforms on the online sale of counterfeit products requires, in addition to a notification and take-down procedure, action against repeat infringements as well as proactive and preventive measures.

Action could thus be the removal or blocking of content. Should this be done by e.g. YouTube and hosting providers, or also by ISPs? And what about due process? Just remove upon notification? “Respect for fundamental rights”?

Plus, (even) stronger civil law enforcement of intellectual property rights

In parallel to this, the Commission will revise the Directive on the enforcement of intellectual property rights in 2012 in order to combat illegal content more effectively and in a manner which upholds the internal market and fundamental rights by improving the framework for civil law proceedings. The creation of the European notice and action framework will be without prejudice to this initiative.

And more private codes of conduct

Cooperation between stakeholders, in particular internet providers, rights-holders and payment services, in the European Union and the US, may also help to combat illegal content.

And who will represent me? An Internet user?

Dutch ISPs have to block the Pirate Bay

Yesterday the Dutch lower court of ’s-Gravenhage ordered Dutch Internet Service Providers (ISPs) Ziggo and XS4ALL to start blocking IP-addresses and domain names that are used by the Pirate Bay. The Dutch Entertainment Industry Trade Association (BREIN) had its claim for a preliminary injunction rejected, but now that the court decided on the merits of the case, BREIN got almost all it wished for.

Taking into account that the administrators of the Pirate Bay have been convicted in Sweden and that a Dutch lower court has (ineffectively) ordered them to delete all torrents that link to copyrighted material of copyright holders represented by BREIN, the court allowed BREIN’s claims.

In its earlier judgment, the court held that blocking the Pirate Bay was not a proportional measure. BREIN could have also asked Ziggo to release personal data of certain infringers so that BREIN could target these individual users. In contrast, the court yesterday argued that trying to sue individual Internet users has proven to be too difficult. Even if BREIN is able to trace IP-addresses of copyright infringing users, BREIN would have to request the ISPs to identify their users, which is something the ISPs have not done on a voluntary basis so far.

Besides blocking the Pirate Bay’s current IP-addresses and domain names, the court ordered the two ISPs to also block future Pirate Bay IP-addresses and domain names that are listed by BREIN.

XS4ALL has announced that it will appeal the case.

This post has been cross posted on the Herdict Blog.

Scarlet v. SABAM, a real victory for Internet freedoms?

A little over a week ago the European Court of Justice gave a long awaited judgement in the Scarlet v. SABAM case. It is the first ECJ case dealing with Article 15 of the E-commerce Directive, which prohibits EU Member States to impose a general obligation on Internet services providers to monitor the information transmitted by them.

SABAM, which is the Belgian copyright collection society, had sought an order requiring Scarlet, an Internet Access Provider, to bring copyright infringements by its subscribers to an end by blocking the transmission of files containing musical works through peer-to-peer software. In order to block infringing transmissions, Scarlet would have to install a filtering system scanning all electronic communications of all its subscribers passing via its services. Furthermore, Scarlet would have to pay for implementing and maintaining the system itself.

The ECJ had to answer the question whether the Copyright Directive and the Enforcement Directive, in the light of the Privacy Directive, the E-Privacy Directive, the E-commerce Directive, and Article 8 and 10 of the ECHR, permit …

“…Member States to authorise a national court, before which substantive proceedings have been brought and on the basis merely of a statutory provision stating that: ‘They [the national courts] may also issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right’, to order an [ISP] to install, for all its customers, in abstracto and as a preventive measure, exclusively at the cost of that ISP and for an unlimited period, a system for filtering all electronic communications, both incoming and outgoing, passing via its services, in particular those involving the use of peer-to-peer software, in order to identify on its network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold rights, and subsequently to block the transfer of such files, either at the point at which they are requested or at which they are sent?”

To put it simple: Whether Scarlet can be required to implement and pay for a filtering system to filter out copyright infringing files?

Article 9 of the Enforcement Directive instructs Member States to ensure that interlocutory injunctions may be issued against intermediaries whose services are used by a third party to infringe an intellectual property right. Also, the E-commerce Directive does not prohibit courts to lay injunctions on intermediaries as it explicitly leaves open the possibility for a court or administrative authority to require the service provider to terminate or prevent an infringement (recital 45). Article 18 of this same directive instructs Member States to “ensure that court actions available under national law concerning information society services’ activities allow for the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved.” On the basis of Article 15(1) of the E-commerce Directive, injunctions may, however, never imply a general obligation to monitor the information that is transmitted or stored. The same accounts for a general obligation to actively seek facts or circumstances indicating illegal activity.

Article 15(1) of the E-commerce Directive is thus at the centre of the issue. The ECJ finds that imposing an injunction to install a filter mechanism is in fact an obligation to actively monitor all the data relating to each of its customers (general monitoring), which is prohibited by Article 15(1) of the E-commerce Directive.

The Promusicae case taught us that the fundamental right to intellectual property, as protected by Article 17 of the EU Charter of Fundamental Rights, has to be balanced with other fundamental rights. The ECJ thus also had to touch on the compatibility of an obligation to implement a filtering system, which clearly is a manifestation of the right to property, with the ISP’s freedom to conduct a business (Article 16 of the EU Charter).

Regarding the freedom to conduct a business, the ECJ holds:

“48       […]such an injunction would result in a serious infringement of the freedom of the ISP concerned to conduct its business since it would require that ISP to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly.

49        In those circumstances, it must be held that the injunction to install the contested filtering system is to be regarded as not respecting the requirement that a fair balance be struck between, on the one hand, the protection of the intellectual-property right enjoyed by copyright holders, and, on the other hand, that of the freedom to conduct business enjoyed by operators such as ISPs.”

The ISP, however, is not the only actor that is affected by a filtering obligation. The ECJ thus also considered the right to freedom of information and the right to the protection of personal data of Internet subscribers.

The ECJ on freedom of information:

“52      […] that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.”

Regarding the right to personal data, the ECJ holds:

“51      It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified.”

The ECJ concludes that imposing a general filtering obligation does not respect the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other.

However, the ECJ’s assessment of the filtering obligation in relation to the Internet user’s freedom of information and right to personal data is not as strict as its assessment of the filtering obligation in the light of the ISP’s freedom to conduct a business. The ECJ calls the filtering obligation a “serious infringement” of the ISP’s freedom to conduct a business. In contrast, regarding the right to freedom of information, the ECJ only speaks of it being potentially undermined by a filtering obligation.

Regarding the right to personal data, the ECJ seems to only focus on the fact that a filtering obligation implies that IP addresses are collected and identified. The ECJ is right that identifying an IP address is processing of personal information, but it being processing of personal data does not mean that it is absolutely forbidden. The EU Data Protection Directive gives rules on how to process personal data and does not completely forbid such processing. Furthermore, the court mentions that a filtering system involves a systematic analysis of all content sent on the network, but does not qualify it as being problematic in the light of data protection law, nor other aspects of privacy such as communication privacy. After all, privacy is more than data protection and the question of the Belgian court did not refer to Article 10 ECHR without reason.

This judgement is great news for ISP’s that are targeted by copyright owners as the ECJ holds that an obligation to install a general filtering mechanism is in conflict with Article 15(1) of the E-commerce Directive. The court furthermore finds that a fair balance is lacking when an ISP has to install and pay for a general filtering mechanism. This of course does not prevent an ISP from ‘voluntarily’ installing a filtering mechanism as a part of a deal with copyright holders. In this context, it is a pity that the ECJ did not express a clear opinion on the Internet subscriber’s right to freedom of information and the right to privacy when filtering mechanisms are installed.

What a contrast: Google uses London open data for tube and bus directions, while Paris public transport operator kills public transport app

This month brought contrasting news on the openness of public transport information in two EU countries. The Telegraph celebrated Google’s mapping service for adding live public transport information and directions. The mobile version of Google Maps has a function that detects a user’s location and that direct him to the nearest tube station or bus stop. Another great function is the alert-function, which warns users to get off their bus or train when they have reached their destination. What’s Google’s secret?

The service relies on Transport for London’s open data platform, which allows developers direct access to data on public transport in the capital, including up-to-date details of roadworks and tube suspensions. Google did not pay for access to the data, which has been freely available since last June.

Around the same time in France, a similar public transport information was killed by the Paris public transport operator (RATP). CheckMyMetro is a free iPhone and Android app that lets French metro users connect to each other and allows them to share information on inter alia incidents and delays. The Paris public transport operator filed a complaint with Apple arguing that the traffic information in the CheckMyMetro app infringed the operator’s database rights. As a result, Apple asked the creator of CheckMyMetro to remove the app from the App Store:

Dear Sirs,

The RATP is a French public company in charge of Public Transports in the Paris area French.
The RATP is the author of the Paris Metro map and the owner of corresponding French design registration (INPI deposit n°06 5325 –Nov. 17th 2006). French and International law on copyright as well as French law on Design thus protect this map. Moreover, the RATP is the owner of the trademark # (INPI deposit n°92402043 – January 21st 1992).

The RATP is concerned with the application “Check my metro” proposed for downloading by the publisher LittleSphere on the App Store and the iTunessince we did not authorize any reproduction or distribution of the said design and trademark.

Moreover, this app embeds the traffic information of our wap site without prior authorization which constitutes an infringement on our rights as producer of database conferred by the French law.

Such reproductions and diffusions may then be considered as counterfeiting acts, and the RATP is entitled to enforce its rights within the French jurisdictions.

Consequently, we ask you to remove the application “Check my metro” by LittleSphere of the App Store and iTunes and to inform the publisher in the same way.

The app is back in the App Store, however, the public transport information has been removed.

Although the French government has started an open data initiative called ETALAB, the Paris public transport information is outside of the realm of the open data initiative because it is in the hands of the public transport operator. The creators of CheckMyMetro, however, are not waiting for the information to be open. They have started their own OpenStreetMap-like project for the Paris Metro at www.checkmymap.fr.

Update, 16:00h: I’ve replaced ‘public transport authority’ with ‘public transport operator‘.

Circumvent that Newspaper Pay Wall, the Legal Way

Some newspapers are planning to put their content behind a ‘pay wall’, meaning that they will charge you for access to their articles. The New York Times is planning to set up such a wall, which will probably will be in place by January 2011. The Wall Street Journal website already offers certain articles to subscribers only.

When you are doing research, pay walls can be very annoying. They can also be tiresome when you are not doing research of course. However, there is a trick that you can use to get access to pages behind those walls. How? The answer is Google News.

Google News has a program called ‘First Click Free’. Participating publishers allow users to access articles behind walls, without requiring them to register or subscribe. The idea behind this program seems to have nothing to do with copyright or good PR, but it has to do with the problem of cloaking. Nevertheless, Google also writes that “First Click Free is a great way for publishers to promote their content and for users to check out a news source before deciding whether to pay”. Maybe the argument of cloaking is just a way to force publishers to have a special door in their walls for Google (and its users).

How to use

Whenever you bump into an article on e.g. The Wall Street Journal (this newspaper participates in the program) and you see an excerpt or summary of the article, copy the title of that article. Then surf to Google News and paste the article’s title into the Google News search field and press ‘Search’. Make sure Google News includes older articles in its search when the article you are looking for is not of recent date.

Remember that, depending on the publisher, the number of free articles you can read through Google News might be limited.