From fragment to framework: a live EU initiative

Can the new digital single market
ever be freed of pirates?

The IPKat is always pleased to discover that someone is working away to bring news of developments that are beyond his line of vision.  As a Kat who is much concerned with developments in Europe, he takes a keen interest in what emanates from Europe's courts. Sometimes, when he's lucky enough, he gets a chance to comment on legislation too.  But there's lots of activity which takes place in the corridors of power and smoke-filled rooms where the wheeling and dealing goes on, which the Kat only gets to hear about from others. So when the European Commission publishes a communication entitled “A coherent framework for building trust in the Digital Single Market for e-commerce and online services”, his intuition doesn't always tell him whether it's anything to do with intellectual property rights and, even if it is, whether it's something to cheer or to worry about. 

For this reason, a deserving katpat goes to Magali Delhaye, who has kindly prepared a note on the Communication in question.  This is what she says:

"The European Commission has announced, as part of its Communication published on 11 January 2012 on e-commerce and other online services entitled “A coherent framework for building trust in the Digital Single Market for e-commerce and online services”, that it will adopt a horizontal initiative on notice and action procedures. The Commission refers to “notice and action procedures” as “those followed by the intermediary internet providers for the purpose of combating illegal content upon receipt of notification”. For example, this is what happens when  the intermediaries "take down illegal content, block it, or request that it be voluntarily taken down by the persons who posted it online”. The type of initiative to be taken will be determined by an impact assessment and its adoption is planned for the third quarter of 2012 according to the European Commission’s Road Map.  

The E-Commerce Directive, which sets up the liability regime of Intermediary Service Providers depending on the different types of activities provided -- i.e. acting as a mere conduit, caching or hosting -- provides the basis for a “notice and action” procedure (Cf. Recital 40) but does not establish one as such. Each country has therefore acted upon its own criteria in that matter. As a result, while the internet is ubiquitous, Europe is fragmented in terms of procedures and remedies to block or remove illegal content. 

This initiative on notice and action procedures aims at solving the problem of fragmentation, providing legal certainty to intermediary internet service providers when they have to deal with illegal (use of) content on the internet while effectively protecting intellectual property rights as well as other fundamental rights. This initiative, which is one among many in the Communication, should eventually help promote the development of e-commerce and the emergence of a truly Digital Single Market. The Commission will review the IP Enforcement Directive in parallel to this initiative.  

The adoption process for this initiative will be keenly watched since it will surely trigger passionate debates between rightholders, ISPs and civil society who have differing and often opposing views, especially with regard to the following aspects of a notice and action procedure:   

• requirements for the notice, 

• the possibility to submit a counter-notice by the alleged infringer, 

• the timeframe for blocking or taking down the unlawful content, 

• liability for providing wrongful notices or for taking down or blocking legal content, 

• the role of the intermediary as a “private judge”, 

• the efficiency of a notice and take down procedure (see Commission Staff Working Paper “Online services, including e-commerce, in the Single Market” accompanying the Communication)".