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EU law not tough enough for online piracy, says Brussels

Wants measures to force ISP cooperation

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Rates of intellectual property infringement in the EU are "alarming", according to the European Commission. It says that an EU law on IP rights has had some effect, but that the legal measure was not designed to deal with online piracy.

Current laws are not strong enough to combat online IP infringement effectively and powers to compel internet service providers (ISPs) and other intermediaries to take more proactive steps should be examined, the Commission said.

The Commission has published a report on the effectiveness of 2004's Directive on Intellectual Property Rights. It harmonised the measures that rights holders and governments could take when IP rights were infringed and established cross-border co-operation to fight piracy.

"A first evaluation of the impact of the Directive shows that noteworthy progress has been made since it was adopted and implemented in the Member States," said the report, to the European Parliament and others. "The Directive created high European legal standards to enforce different types of rights that are protected by independent legal regimes (such as copyright, patents, trademarks and designs, but also geographical indications and plant breeders' rights)."

"However, despite an overall improvement of enforcement procedures, the sheer volume and financial value of intellectual property rights infringements are alarming," it said. "One reason is the unprecedented increase in opportunities to infringe intellectual property rights offered by the Internet. The Directive was not designed with this challenge in mind."

"The multi-purpose nature of the Internet makes it easy to commit a wide variety of infringements of intellectual property rights," said the report. "Goods infringing intellectual property rights are offered for sale on the Internet. Search engines often enable fraudsters to attract Internet users to their unlawful offers available for sale or download.

"File-sharing of copyright-protected content has become ubiquitous, partly because the development of legal offers of digital content has not been able to keep up with demand, especially on a cross-border basis, and has led many law-abiding citizens to commit massive infringements of copyright and related rights in the form of illegal up-loading and disseminating protected content."

"Many online sites are either hosting or facilitating the online distribution of protected works without the consent of the right holders. In this context, the limitations of the existing legal framework may need to be clearly assessed," it said.

That assessment could cover the laws governing the liabilities and responsibilities of intermediaries, including ISPs and web hosts. These companies are currently not responsible for illegal use of their services that they are not aware of.

The report said that the Directive allows for injunctions to be taken out against intermediaries, but that "the level of evidence required by the courts in the Member States is generally rather high".

"Furthermore, uncertainties remain over intermediaries and the specific measures to which they are subject by contributing to or facilitating an infringement, regardless of their liability," it said.

The Commission said that intermediaries such as ISPs could be vital in combating IP infringement, but that the current law does not allow countries to force them to take action.

"The currently available legislative and non-legislative instruments are not powerful enough to combat online infringements of intellectual property rights effectively," it said. "Given intermediaries' favourable position to contribute to the prevention and termination of online infringements, the Commission could explore how to involve them more closely."

See: The report (10-page/49KB pdf)

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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