With most of the world immersed in the distractions and challenges of Covid-19, vaccines, US presential election outcomes and more, you’d be excused for not being fully up to speed on the inner workings of intellectual property (IP) frameworks within the European Union. However, there are some important policy and legislative changes underway right now which are likely to have a significant long-term impact on the pay media landscape. Let’s take a deeper dive.
On November 25, 2020, European Commission published a long awaited “IP Action Plan” entitled “Making the most of the EU’s innovative potential: An intellectual property action plan to support the EU’s recovery and resilience”. In their IP Action Plan, the Commission acknowledges the importance of IP and the need to protect the owners. This action plan is a very welcome first step towards laying down more binding rules for the responsibilities of digital services in the forthcoming European Union “Digital Services Act” (DSA).
With the package of laws that make up the Digital Services Act, the Commission has the ambition to ensure that Europe fully prepared for the constantly and rapidly evolving digital age. Policy makers have reflected for years on how to reform the framework for moderating illegal user-generated content, and now the EU wants to make solutions a legislative reality.
Through the IP Action Plan, the EU announced measures in five key intellectual property areas:
- Improve the protection of IP
- Increase the uptake of IP by small and medium-sized companies (SMEs)
- Facilitate the sharing of IP
- Improve enforcement of IP rights and fight counterfeiting
- Promote a global level playing field
For the sake of focus on this complex topic, we’ll focus primarily on “Improve enforcement of IP rights and fight counterfeiting”.
Improving the protection of Intellectual Property Rights
With respect to IPR in the audiovisual content arena, the Commission underlined the importance of the industry’s fight against piracy and in particular, illegal internet protocol television (IPTV) and other forms of illegal (live) streaming.
We hope the approach the European Commission takes is one of harmonized “notice and action” procedures, including stay down measures, deterrent actions against repeat infringement and specific policies related to trusted flaggers. Some of the areas to be optimistic about are:
Know your business customer obligations
Interested parties, including victims of IP infringements, should have a means to request digital services to disclose information about their business customers. If a business customer is not identifiable or has provided false information about their identity, the digital service should terminate the business relationship with that customer and cease providing its services.
Real-time takedown tools
Provide inexpensive and easy to use tools that obligate streaming platforms, hosting providers and others to ensure expeditious removal of pirated content.
Remove off platform infringements
Challenge the major social media companies to more diligently monitor content linked from their platforms.
Harmonised take down notices
A clearer take down notice regimen that ensures previously pirated content stays down, deters repeat infringement and specific policies related to trusted flaggers.
Confirm the public interest nature of the WHOIS database
This will allow consumers, rightsholders, government agencies and other interested parties to obtain the domain registration data necessary to ascertain the origin of goods and services that they wish to purchase or seek redress on.
The need to improve enforcement of IPR
We are encouraged to read that the European Commission is focusing on three key areas for fighting IPR infringements. These areas will:
- clarify and upgrade the responsibilities of digital services, in particular online platforms, through the Digital Services Act (Q4 2020)
- strengthen the role of OLAF in the fight against counterfeiting and piracy (2022)
- establish an EU Toolbox against counterfeiting
The forthcoming proposal for the Digital Services Act package will aim to “harmonize a set of specific, binding and proportionate obligations and will remove disincentives for their voluntary actions to address illegal content (goods or services) they intermediate.“
It would be beneficial that the DSA defines a proper “duty of care”. It should apply to “passive platforms” and clarifies the liability regimes of online intermediaries. If intermediaries are able to extract significant (financial) value from content and benefit from a limited liability regime as a passive intermediary, it would be contrary to the objectives of the DSA in terms of tackling illegal content of such services.
We also believe it is a positive development to strengthen the capacity of law enforcement authorities, to broaden the Commission’s mandate and assigning it to the European Anti-Fraud Office (OLAF).
The ability to issue dynamic cross-border injunctions is also an important area in the fight against piracy. Injunctions represent a key remedy for rightsholders against all types of digital services to tackle IPR infringements.
An EU Toolbox for fighting piracy
In 2022, it is expected that the EU will produce a “toolbox” to assist in the fight against piracy and counterfeiting. The transparency around such tools will be important. Better cooperation and clarification of roles between public enforcement authorities, right holders, suppliers and other intermediaries will ensure its success. As always, anything that facilitates better cooperation will be helpful including:
Content Recognition Tools
These should be made transparent to an independent authority and regularly audited. It’s important that a pro-piracy bias does not exist and that they cover all uploaded content with the same conditions.
A central repository/database could set up for site blocking injunctions issued by member states. This site-blocking record could then be used as a reference by rightsholders to have ISPs locally implement the blocking.
Fast, reliable, clearly defined and trusted flaggers would assist in ensuring consistency and applicability across all EU members.
We look forward to seeing the DSA proposal in coming weeks and hope that it will provide a much-needed legislative step change to help our industry fight IPR infringements, particularly illegal internet protocol television (IPTV) and other forms of illegal (live) streaming.