The Audiovisual Social Dialogue Committee recently adopted a joint opinion calling for stronger protection against unauthorised file sharing of protected works and performances. This joint opinion is part of a larger debate about the enforcement of copyright on the internet – in particular, about finding a balance between the protection of authors’ rights and the individual’s right to privacy, data protection and freedom of expression.
The social partners in the audiovisual industry are concerned about the growth of unauthorised file sharing of copyrighted works and recorded performances. They fear that it will threaten the economic basis of media companies, as well as the remuneration and jobs of authors, performers and other right holders.
In order to address this issue, the Audiovisual Social Dialogue Committee adopted a formal joint opinion (61Kb PDF) on ‘protecting creativity, innovation and jobs’ in November 2009. The committee is composed of UNI Media, Entertainment and Arts, part of Union Network International (UNI), as well as – on the workers’ side – the International Federation of Musicians (Fédération Internationale des Musiciens, FIM), the International Federation of Actors (Fédération Internationale des Acteurs, FIA) and the European Federation of Journalists (EFJ). On the employers’ side, the joint committee comprises the Association of Commercial Television in Europe (ACT), the Association of European Radios (AER), the European Coordination of Independent Producers (Co-ordination Européenne des Producteurs Indépendants, CEPI), the European Broadcasting Union (EBU) and the International Federation of Film Producers’ Associations (Fédération Internationale des Associations de Producteurs de Films, FIAPF).
The joint opinion explicitly calls on the European Commission to:
The EU had already addressed the effects of the digital revolution on the protection of copyright through Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society – in particular, by legally protecting so-called digital rights management measures and by banning products that are primarily designed to circumvent such measures. However, as these provisions did not produce the desired effects, the political debate about appropriate measures to prevent illegal copying and file sharing has been renewed at European as well as national level. France and the United Kingdom have recently adopted new laws regarding the protection of intellectual property rights, after intense debate. The French Creation and Internet Law introduced the so-called ‘three strikes policy’ of graduated response, which sees consumers disconnected from the internet after a number of notification letters warning them that they are violating copyright. The British Digital Economy Act 2010 introduced a similar policy of graduated response. The Audiovisual Social Dialogue Committee explicitly commends these initiatives in its joint opinion.
However, the ‘three strikes policy’ remains controversial. The French law was initially rejected by the Constitutional Court of France, which ruled that access to the internet is protected by the right to freedom of expression and hence only a judge can impose such a sanction. At EU level, the adoption of the Telecoms Package COM(2007) 697 final in 2009 was delayed for several months mainly because of a conflict between the European Council and Parliament about an amendment making it illegal for governments to disconnect internet users based on suspected copyright violations until they are proven guilty in court.
The reasoning behind the rejection of internet disconnection as a final measure against illegal file sharing is expressed in an Opinion of the European Data Protection Supervisor (145Kb PDF) on the current negotiations by the European Union of an Anti-Counterfeiting Trade Agreement (ACTA), which states that:
‘Such practices are highly invasive in the individuals’ private sphere. They entail the generalised monitoring of internet users’ activities, including perfectly lawful ones. They affect millions of law-abiding internet users, including many children and adolescents. They are carried out by private parties, not by law enforcement authorities. Moreover, nowadays, internet plays a central role in almost all aspects of modern life, thus, the effects of disconnecting internet access may be enormous, cutting individuals off from work, culture, eGovernment applications, etc.’
Against the background of such controversies, the main issue to be addressed is finding appropriate measures that create a balance between the protection of authors’ rights and the individual’s right to privacy, data protection and freedom of expression.
Stefan Lücking, Friedrich-Alexander University Erlangen-Nürnberg