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White paper – Enforcing right in a meaningful manner

Respect for IP rights is an essential feature of the innovation value chain, since rights that cannot be enforced are of no (economic) value. The lack of a clear and predictable IP enforcement system had a chilling effect on investment in IP in general. Effective enforcement of copyright in the digital world is challenging because of the inherent cross-border nature of the internet, the remaining differences in national IP enforcement systems, and the speed with which commercial-scale infringers can change the sources and location of their infringing activity.

Right holders seeking respect of their right in the online world need effective cross-border court orders. However that is difficult in the absence of a fully harmonised system of substantive law. More generally, although a number of legal tools exist at EU or Member State level to tackle infringements of copyright, there are various problems with the accessibility and efficiency of these measures. There are also concerns regarding the protection of fundamental rights when those tools are applied, particularly against non-commercial scale infringers. The remaining differences in the IP civil enforcement frameworks of Member States and the aforementioned uncertainties surrounding how they are applied make cross-border actions slow and costly, whereas commercial-scale infringers can rapidly move within the single market.

Thus, the current framework is not effective in ensuring respect of copyright, in particular in cross-border cases, which are very common on the internet. The key challenge is to rapidly identify and tackle the source of such activities with the assistance of intermediaries, in particular the most harmful commercial-scale infringements that seek to generate profits. This is particularly difficult on the internet when the problematic service is located outside of the jurisdiction of the seized court and when the service facilitating the infringements is shielded from the specific liability regime provided for by the EU legal framework. The challenges range from collecting evidence to using a fragmented judicial system to actually “catch” the illegal source.

A focus on enhancing due diligence obligations for all actors in the value chain of digital content distribution could be considered. Even if intermediaries do not necessarily carry out themselves acts that would require the authorisation of the right holders, they could be encouraged to pro-actively help in addressing the commercial offer of copyright-infringing content on the internet. This could be done through different means that should be proportionate and balanced, and would help uphold the reward function of copyright for the creative industries.

More generally, in order to ensure that all potential measures are effective and proportionate, legal clarifications could be brought on the different intermediaries that can be involved, on the types, conditions and duration of these measures, as well as the articulation between the different fundamental rights involved. This would concern, in particular, the protection of privacy, of personal data, freedom of information and expression, freedom to conduct a business and the right to property. Finally, there should also be a focus on the “follow the money” approach. Piracy will thrive as long as it is a “business model”, but its financial resources could be threatened by limiting the provision of payment services and advertising to such websites.