Rights groups target antipiracy directive

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Dear MEPs

My points:

ARTICLE 6B

Article 6b., implements this point from Section 18:

?Since copyright exists from the creation of a work and does not require formal registration, it is appropriate to adopt the rule in Article 15 of the Berne Convention, which establishes the presumption whereby the author of a literary or artistic work is regarded as such if his name appears on the work. A similar presumption should be applied to the owners of related rights since often it is the holder of a related right, such as a phonogram producer, who will seek to defend rights and engage in fighting acts of piracy."

Article 15 of the Berne Convention does not mention ?owners of related rights?, and I do not believe it is safe to simply assume that anyone who says they are the license owner of a work is actually telling the truth!

Why shouldn't the phonogram producer show the court that they do in fact have the rights to use the authors work. They must have a contract, without that contract Berne Convention says the rights belong to the author, so if they can't show the contract to the court, they have no rights in the matter.


Article 10

Article 10, implements Section 22a.
?22a, Without prejudice to any other measures and remedies available, rightholders should have the possibility of applying for an injunction against an intermediary whose services are being used by a third party to infringe the rightholder's industrial property right?

This is implemented by Article 10, 1a) which permits injunctions against 3rd parties. Article 10 2) allows them to be made without the defendant having been heard. Article 15 paragraph 2 repeats this.

The problem here is that the defendant has to request the measures be removed. Art 10.2, ?A review, including the right to be heard, shall take place upon request of the defendant?

In the US, a similar provision has been used to force the search engine Google to remove sites from search results.

But it allows fake claimant to go after easy target third parties. Third parties that have no links to the alleged infringer and no reason to check any facts. Since the court is simply taking the claimants word at face value, there's no mechanism to detect and prevent fake claims.

Can I suggest that 3rd parties who have some DIRECT business relationship to the alleged infringer are the only ones allowed to come under this. So for example, you could file against the ISP who receives money from the alleged offender, but not search engines, and every other ISP in the Internet.


Article 17 b.

?as an alternative to (a), they may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question.?

It gives no reasons as to why this alternative would be used, however the preamble in 24) says ?As an alternative, for example where it would be difficult to determine the amount of the actual prejudice suffered,?

If a claimant can't make a plausible argument for X% of the rights as damaged then why should X be set to 100%? Why not 0%? Or 50%?
Surely a claim for damages should be able to show ?damage? otherwise it?s a spurious claim.

Can I point out that there is no fair use provision in Europe, and if a CD maker decides to go after anyone who makes a mix CD for their own personal use, this entitles the publisher to full damages, plus costs. It is very unlikely a person would buy a second music license for a personal mix CD so it would result in no damage, but what %? 0.001%?. Yet by default it is 100% of the license right.

Article 5

?Persons entitled to apply for the application of the measures and procedures?
includes ??professional defence bodies?

An IP dispute is a dispute between an IP holder and an alleged infringer, yet this section allows the IP holder to hide behind a proxy.

Can I suggest that ?professional defence bodies? should be removed from this <ocument. If offenders can?t substitute a proxy for themselves in court, then why should an accuser by able to?

Vigilante organisations are not normally given special rights!

Article 7 Evidence, & Article 8

This section permits injunctions and seizing of equipement "even before the commencement of proceedings on the merits of the case" before the other party has been heard and "...where any delay is likely to cause irreparable harm to the right holder,?

If the case hasn?t be examined, how can a claim of ?irreparable harm? be established?

It?s difficult to come up with a plausible scenario, where a rights holder has sufficient notice to obtain the evidence to obtain an injunction, yet their rights would be destroyed in a split second if the accused persons side of the story was heard!?

Can I suggest that the only reasonable reason to seize evidence is if that evidence might be destroyed.

No Fair Use Provision

There is no fair use provision to protect consumers from being targeted for minor infringements, e.g. backup CDs.

Preamble 13a) asserts that it only needs to be applied to commercial scale infringement, but it sets a MINIMUM of commercial scale.

?13a) This is without prejudice to the possibility for Member States to apply these measures also in respect of other acts.?

We are in a ridiculous situation now, where I cannot legally back up my computer in the UK because, whilst I can backup computer software, the music files I buy cannot be copied for any reason, even fair use backup. Ripping from CD to MP3 to play my MP3s is technically a copyright infringement!

That is not a good situation to be in, and without a clear definition of what is fair use, this proposal makes the position much worse.

Posted by: Nigel Johnstone   Posted on: 03/08/04 You are currently: a Guest | Members login | Terms of Use

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