Does ACTA live on in the EC IPRED Directive?

IPRED requires European member states to apply “procedures and remedies necessary to ensure the enforcement of the intellectual property rights covered by this Directive. Those measures, procedures and remedies shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.” The consultation document sought views on how those procedures and remedies should be enforced; but did so in a manner that Dr Monica Horten – copyright specialist and visiting fellow at the London School of Economics & Political Science – says “is seriously problematic.”

Standard practice when a government body or law enforcement agency fails to get its way, as in ACTA, is a temporary withdrawal followed by a new campaign with different words. Dr Monica Horten has used her IPtegrity blog to raise concerns that ACTA may not be as dead and buried as anti-ACTA activists may hope and believe. She sees the same attitudes and entertainment-industry bias in the EC’s public consultation document asking for views on enforcement of the IPRED directive – a consultation period that closed on Easter Sunday.

Dr Horten’s concern is that the consultation, Civil enforcement of intellectual property rights: public consultation on the efficiency of proceedings and accessibility of measures, looked too much like a method for obfuscating and re-introducing ACTA. Three aspects particularly worry her: length, viewpoint and content. Firstly, she says, “it is such a long, complex document, that only a corporate lawyer will have the skill and the will to complete it.” 

Secondly, it is written almost entirely from the perspective of the entertainment industry. “All of the questions are addressed to rights-holders and ask only for their viewpoint,” she says. “There is no place for non-rights-holders, who could be ISPs, to write a response.” So when a series of questions asks respondents if they have been able to successfully obtain information from ‘intermediaries’, it’s “asking major rights-holders if they’ve been able to obtain names of alleged infringers from the ISPs.” It does not allow the ISPs to offer an alternative viewpoint.

On the content she comments, “3 strikes, website blocking, ISP policing of the Internet – it’s all in there, but some of the code-words have changed.” For example, one question asks if it is “possible for a right holder to use the notification to ask an intermediary to impede access to goods or services that he considers to be infringing his IPRs and that are offered through the services of this intermediary?” For ‘impede access’ read blocking access to websites and payment services, or blocking a user’s internet access. “There is a sense,” she says, “in which it twists the outcome of the Telecoms Package - ok, you need a court ruling, tell us if we can simplify that process for you.”

Indeed, she believes her own prophecy from a year ago has proven correct: "The problem with these kinds of follow-up questionnaires is of course, that they tend to be self-referential, and if the rights-holders set the agenda, as they usually do, then the questionnaire tends to home in on what they want."

Now Dr Horten goes further. “This really gives a sensation of deja vue to anyone who followed the ACTA debate. Indeed, it’s interesting to see the ACTA-like language in this consultation.”

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