Cooperation

After the attempts at targeting file-sharers with civil and criminal sanctions, in the past five years, the supporters of a crackdown on the unauthorized online sharing of copyrighted works have tried to compel technical intermediaries -- such as hosting services, search engines, access providers and more recently domain name registrars -- to police their networks and services. As a consequence, a growing number of policy-making efforts make references to "cooperation", "self-regulation" or "voluntary agreement", so as to turn Internet intermediaries into the primary gatekeepers of online communications.

The reason for this shift towards "devolved regulation" which amounts to private censorship is that direct intervention by public authorities in the regulation of online activities is constrained by some of the earliest and most important principles found in Internet law. For instance, in Europe, the 2000 e-Commerce directive created a special legal framework distinct from the one regulating traditional media and interpersonal means of communications, and thereby enabled strong innovation and growth in the online sector. It also protected freedom of expression by prohibiting any general obligation for on-line service providers to monitor their users' activities.

Because, of these constrains, the "cooperation" rhetoric aims at stepping up legal pressure on intermediaries to police the Internet. This shift is explained by DeBeer and Clemmer:

«  Previously, the worldwide standard approach to issues of Internet service provider liability was to require carriers and hosts to behave passively until becoming aware of copyright-infringing activities on their networks (...). Very recent events in several jurisdictions demonstrate a new trend away from a passive-reactive approach toward an active-preventative approach instead. Government policies, voluntary practices, legislative enactments, and judicial rulings are all contributing to this shift in the rules applicable to online intermediaries. One reason for the shift is increased pressure from rightholders on legislators and policymakers to make intermediaries play a greater role in online copyright enforcement. Another less obvious reason is that intermediaries’ and rights-holders’ interests are aligning. While rightholders are concerned about copyright enforcement and intermediaries are concerned about network management, the result is a mutual interest in content filtering or traffic shaping.  »
    — DeBeer Jeremy F. & Clemmer Christopher D.

Global Trends in Online Copyright Enforcement: A Non-Neutral Role for Network Intermediaries?, 2009.

International

G8 Camp David Final Declaration (19.5.2012)

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• (9) Given the importance of intellectual property rights (IPR) to stimulating job and economic growth, we affirm the significance of high standards for IPR protection and enforcement, including through international legal instruments and mutual assistance agreements, as well as through government procurement processes, private-sector voluntary codes of best practices, and enhanced customs cooperation, while promoting the free flow of information. To protect public health and consumer safety, we also commit to exchange information on rogue internet pharmacy sites in accordance with national law and share best practices on combating counterfeit medical products.

OECD Principles for Internet Policy-Making (29.6.2011)

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• Internet intermediaries, like other stakeholders, can and do play an important role by addressing and deterring illegal activity, fraud and misleading and unfair practices conducted over their networks and services as well as advancing economic growth. Limitations play an important role in promoting innovation and creativity, the free flow of information, and in providing the incentives for co-operation between stakeholders. Within this context governments may choose to convene stakeholders in a transparent, multi-stakeholder process to identify the appropriate circumstances under which Internet intermediaries could take steps to educate users, assist rights holders in enforcing their rights or reduce illegal content, while minimising burdens on intermediaries and ensuring legal certainty for them, respecting fair process, and more generally employing the principles identified in this document.

G8 Summit of Deauville Declaration - Renewed Commitment to Freedom and Democracy (30.5.2011)

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• With regard to the protection of intellectual property, in particular copyright, trademarks, trade secrets and patents, we recognize the need to have national laws and frameworks for improved enforcement. We are thus renewing our commitment to ensuring effective action against violations of intellectual property rights in the digital arena, including action that addresses present and future infringements. We recognize that the effective implementation of intellectual property rules requires suitable international cooperation of relevant stakeholders, including with the private sector.

ACTA final text (3.12.2010)

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• Desiring to promote cooperation between service providers and right holders to address relevant infringements in the digital environment; (...)

Art. 27: Enforcement in the digital environment.

• 1. Each Party shall ensure that enforcement procedures, to the extent set forth in Sections 2 (Civil Enforcement) and 4 (Criminal Enforcement), are available under its law so as to permit effective action against an act of infringement of intellectual property rights which takes place in the digital environment, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringements. (...)

• 3: Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.

According to a brief by the EU Commission from late-2009, the first draft of ACTA written by the US povided that "to benefit from safe-harbours, ISPs need to put in place policies to deter unauthorised storage and transmission of IP infringing content (ex: clauses in customers' contracts allowing, inter alia, a graduated response). From what we understood, the US will not propose that authorities need to create such systems. Instead they require some self-regulation by ISPs. This Section 3 should also contain "broad" provisions regarding notice-and-take down mechanisms".

Later versions of the text include a paragraph conditioning liability exemptions (safe harbors) to the intermediary "adopting and reasonably implementing a policy to address the unauthorized storage or transmission of materials protected by copyright or related rights". A US footnote stresses that "an example of such a policy is providing for the termination in appropriate circumstances of subscriptions and accounts on the service provider's system or network of repeat infringers".

Other international references to Intermediary cooperation

Other international efforts to support "cooperation" include the following.

• a series of ongoing "public-private dialogues" organised by the European Commission to encourage hosting providers to engage in extra-judicial rulings of illegality;
• a 2010 European Commission funding proposal incentivising companies to engage in "self-regulatory" Internet blocking of allegedly illegal online material;
• discussions launched by the Council of Europe's Assembly in 2010 whose intention appears to be to increase the legal obligations of intermediaries, despite the fact that this would be "contrary both to the letter and the spirit of the 2003 Declaration on freedom of communication on the Internet";
• 2010 OECD discussions, which aim to increase the responsibility of Internet intermediaries in advancing "public policy objectives";
• an OSCE consultation in 2010, the aim of which was to explore ways to enable ISPs to "'regulate' online legal or illegal 'hate speech'"';
• EU/India and EU/Korea bilateral free trade agreements that would change the EU acquis on intermediary liability.

All are discussed in more details in EDRi's study on "devolved online enforcement".

European Union

EU Commission Communication on IPR strategy (27.5.2011)

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• In parallel, the Commission intends to review the IPR enforcement Directive. The recently published Report on the application of the IPR enforcement directive shows that the challenge lies in reconciling IPR enforcement in the digital environment. The Commission will propose amendments to the Enforcement Directive in order to create a framework allowing, in particular, combating infringements of IPRs via the internet more effectively. These amendments should tackle the infringements at their source and, to that end, foster cooperation of intermediaries, such as internet service providers. Furthermore, in order to allow the parties involved to work together successfully, an appropriate balance needs to be struck between the right to information and the right to privacy.

• In parallel, the Commission will continue its efforts, initiated following its 2009 Communication, to explore to what extent, in particular, the sale of counterfeit goods over the Internet can be reduced through voluntary measures, involving the stakeholders most concerned by this phenomenon (right holders and internet platforms).

EU Commission Report on the application of IPRED (22.12.2010)

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• The Directive leaves it to Member States to determine when and how an injunction can be issued against an intermediary. For this to work efficiently, it could be useful to clarify that injunctions should not depend on the liability of the intermediary. Furthermore, the findings reported in the Staff Working Paper that accompanies this Report indicate that the currently available legislative and non-legislative instruments are not powerful enough to combat online infringements of intellectual property rights effectively. Given intermediaries' favourable position to contribute to the prevention and termination of online infringements, the Commission could explore how to involve them more closely.

EU Parliament adopted Gallo report (22.09.2010)

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• 1. Welcomes the communication of 11 September 2009 from the Commission concerning additional non-legislative measures; regrets however that the communication does not deal with the matter of completing the legislative framework by introducing a set of measures to combat intellectual property right infringements in an effective manner; welcomes the progress made in the EU in harmonising the fight against counterfeiting; encourages the Commission to step up its efforts in areas that are sensitive in terms of health and safety, including that of medicines;
• 24. Agrees with the Commission that additional non-legislative measures such as discussions on possible improvements to the digital market in Europe through voluntary harmonisation of procedures and standards amongst stakeholders can be useful to improve the application of IPRs, particularly measures arising from in-depth dialogue among stakeholders;

EU Parliament, Gallo report as adopted by the legal affairs committee (3.6.2010)

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• 1. Welcomes the communication of 11 September 2009 from the Commission concerning additional non-legislative measures; regrets however that the communication does not deal with the matter of completing the legislative framework by introducing a set of measures to combat intellectual property right infringements in an effective manner; welcomes the progress made in the EU in harmonising the fight against counterfeiting; encourages the Commission to step up its efforts in areas that are sensitive in terms of health and safety, including that of medicines;
• 25. Agrees with the Commission that additional non-legislative measures such as discussions on possible improvements to the digital market in Europe through voluntary harmonisation of procedures and standards amongst stakeholders can be useful to improve the application of IPRs, particularly measures arising from in-depth dialogue among stakeholders;

EU Parliament, Draft Gallo report presented to the JURI committee (13.1.2010)

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• 1. Welcomes the communication of 11 September 2009 from the Commission concerning additional non-legislative measures; regrets however that the communication does not deal with the completion of the legislative framework;
• 16. Agrees with the Commission that additional non-legislative measures are useful to improve the application of IPR, particularly measures arising from in-depth dialogue among stakeholders.

EU Commission Communication on the enforcement of IPR in the internal market (11.9.2009)

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• With a principal body of laws in place, the Commission now proposes to supplement the regulatory framework with complementary non-legislative measures, in line with Competitiveness Council Resolution of 25 September 2008 on a comprehensive European anti-counterfeiting and piracy-plan. (...)

• Rights holders and other stakeholders should be encouraged to exploit the potential of collaborative approaches and to place more emphasis on joining forces to combat counterfeiting and piracy in the common interest, also taking advantage of possible alternatives to court proceedings for settling disputes.