The European Commission released a broad Intellectual Property Rights (IPR) strategy today, which defines outstanding initiatives in the areas of authors’ IPRs, trademarks, designs, and geographical indications. The preliminary Directive covering orphan works was introduced today. Other topics will be introduced in the second half of the year or next year.
The Computer & Communications Industry Association supports the European Commission’s efforts in defining an IPR strategy, which support the European ‘Single Market’ concept in a more suitable way, which understands the nature of the Internet and the Digital Economy. To define new European-wide solutions for digital libraries and orphan works is applaudable. To find solutions for user-generated content and private copying levies is needed. But we must ask why is the European Commission not looking into Europeanizing the nationally driven system of ‘exceptions and limitations to IPR’. The economic importance of these exceptions and limitations cannot be overstated. A recent study found the value added from industries relying on copyright exceptions to amount to EUR 1.1 trillion, or 9.3 percent of the EU’s GDP. In addition, nearly 9 million people are employed in industries relying on exceptions or limitations.
It is interesting to note that the Commission’s publication takes place against the background of important developments in certain Member States that arguably go into the direction of a more flexible approach to IPR enforcement. Accordingly, the Irish Minister for Enterprise, Jobs and Innovation, Richard Bruton T.D., recently decided to conduct a review of Irish copyright laws in order to identify problems that constitute a barrier to innovation. The review will explicitly examine the US style ‘fair use’ doctrine to see in how far it would be suitable in the Irish and EU context. To this end a public consultation remains open until the end of June 2011.
In the UK the debate on an appropriate and balanced IPR regime gained increased momentum as a result of the so-called Hargreaves report published in mid-May this year. Even though the report does not endorse the U.S. style ‘fair use’ doctrine, it nevertheless acknowledges the need for forward-looking and flexible limitations to government-granted rights. Such limitations are needed to enable new technologies that do not compete with the normal exploitation of the work. Furthermore, the report also clearly noted that one-sided enforcement policies are not enough to meet the challenges posed by the digital age.
The Commission IPR strategy is strong on IPR violations; it proposes to revise the IPR Enforcement Directive in spring 2012. Very likely the Commission aims to force Internet Service Providers (ISPs) to play a greater role in combating illegal downloads. In this context, the strategy explicitly mentions that it aspires to ‘tackle infringements at their source and, to that end, foster cooperation of intermediaries, such as Internet service providers’, which means ISPs could be held liable for piracy. This in turn will lead to more initiatives to filter Internet content and as a last resort to cut off users’ Internet access without any judicial intervention.
CCIA remains deeply concerned that the European Commission’s proposals may not get the promised balance between the protection of IPR and innovation cycles right. One must answer seriously the question why there is no Google, Facebook or Apple in Europe. Another question to ask is why many new media-related business models, which have a global impact, are created outside of the EU. Something must have gone wrong over the last years. The lack of flexible, e-commerce friendly, European-wide exceptions to IPRs will continue to prevent the growth of a domestic Internet industry within Europe.
The following statement can be attributed to CCIA Executive Vice-President Erika Mann: “I remain deeply concerned that the answer of the Commission to the Internet related business models is more control, more protection, more law enforcement initiatives. Innovation is far more important than protection of IPR”.