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12th Aug 2022

EU court cool on copyright enforcement by private companies

  • The ruling could have a wide-reaching impact on efforts to get private companies to police the internet (Photo: Bombardier)

In an opinion with significant implications for ongoing EU discussions on how to deal with online copyright infringement and internet piracy, an EU advocate general on Thursday said a Belgian internet provider cannot be forced by a national court to block users from illegally sharing music.

Pedro Cruz Villalon of the European Court of Justice argued that ordering an Internet Service Provider (ISP) to filter and block electronic communications in a bid to protect copyright in principle "infringes fundamental rights".

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In the opinion, normally endorsed in the final ruling by the court, the advocate general expressed concern about delegating legal responsibility for the fight against illegal downloading and suggested that any measure taken against internet users would be allowed "only if it were adopted on a national legal basis which was accessible, clear and predictable".

He also said that if an ISP installs a filtering system, this would breach the EU's Charter of Fundamental Rights on data protection and privacy of communication grounds.

The case arose after a Belgian court last year asked the top EU court whether obliging an ISP - in this case Belgium's Scarlet - to act against illegal file sharing on its network contravened European rules. Belgian music-copyright group Sabam had originally tried to force the company to police its network for illicit downloading.

The opinion has implications for several areas of EU policy, with the European Commission later this year due to publish a much-anticipated overhaul of its intellectual property rights rules, as internet piracy and copyright infringement soars.

A policy tool it has increasingly considered in recent times is recruiting internet providers to help clamp down on illegal online activity.

"This raises major questions over the legality of a whole range of Commission proposals," Joe McNamee of European Digital Rights, an umbrella organisation for privacy and civil rights groups, told this website.

He cites "internet blocking, voluntary internet blocking, extra-judicial deletion of websites, the co-operation demanded of ISPs in the Anti-Counterfeiting Trade Agreement as well as the Commission's funding of ISP policing projects," as areas affected by the opinion.

Similar questions have been elsewhere. Internet providers BT and TalkTalk in Britain are currently challenging a domestic law that they say would force them to police the internet. They are demanding legal clarity, particularly on whether the law breaches an individual's privacy.

Former music industry representative takes EU copyright post

Meanwhile, the commission has come under fire for appointing former music industry representative Maria Martin-Prat to be its head of copyright in the internal market directorate.

Formerly a director of legal affairs at the International Federation of the Phonographic Industry, the record company association, Martin-Prat will oversee the review intellectual property rights rules.

The commission, also working on proposals on collective rights management (the proposals will update rules on how rights societies collect royalties for their authors) and pan-European licensing, has come under intense lobbying from the music industry.

This is why, argue some MEPs, the former industry representative should not have been put in the post.

"[The appointment] leads to a lot of suspicion among stakeholders about the objectivity of the Commission, in the already sensitive discussions on intellectual property rights," Dutch Liberal MEP Marietje Schaake, told EUobserver.

"To me, a fair and balanced approach means that consumers can access music and films and artists are remunerated in a fair manner," she said. Both she and her Swedish pirate party colleague Christian Engström have written to the commission asking for answers.

A commission internal market spokesperson pointed out that it is "almost seven years since Maria [Martin-Prat] worked in the industry so she has also had a very long "cooling off period"."

"It is fully normal for civil servants to have some experience of the area they are responsible for," added the spokesperson.

Indie group Rökkurró on online copyright infringement

EUOBSERVER / BOTANIQUE CONCERT HALL / BRUSSELS (16 April 2011) Indie band Rökkurró from Iceland talk about music pirating and fees for artists just after their concert in Botanique in Brussels

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