ISP's in the firing line - who carries the can?

Today's number 1 issue in digital media law is how far copyright owners can force  ISP's and hosts to take responsibility for carrying or hosting copyright infriinging and illegal content.

At Midem yesterday, Paul McGuiness was in no doubt. "I suggest we shift the focus of moral pressure away from the individual P2P file thief and on to the multibillion dollar industries that benefit from these countless tiny crimes."

Certainly that's a view shared by many rights owners who won't be happy with yesterday's decision of the

European Court of Justice (ECJ) decision in Promusicae v. Telefonica. This arose out of an action which the Spanish music collecting society brought against Telefonica in the Spanish Courts for an order to force the ISP to disclose the names and physical addresses of its users who exchange illegal copies of copyright works via KaZaA' P2P software.

The ECJ were asked to answer this question: does European law require member states to impose an obligation on ISPs to disclose personal information about their users in the course of civil proceedings e.g. for copyright infringement? Answer: "no".

So today's FT billed the ECJ's decision as an ISP victory: "Court deals blow to copyright owners." In contrast, ifpi, representing the recording industry, welcomed the judgment: "European Court sends clear signal that Member States have to strike right balance between privacy and enforcementintellectual property rights."

So what's going on? In fact, the ECJ's decision does leave the legislative door open for rights holders. But to undertstand how and why, we need to examine the ECJ's decision in a bit of detail.

The ECJ said that what it had to do was balance the provisions in Community law that protected intellectual property  rights (IPRs) with those that protected personal privacy. As regards the latter, there are plenty of provisions about remedies and enforcement of intellectual property rights in the Directives on opyright, enforcement of IPRs and even in the E-Commerce Directive.

But weighed against that is the Data Protection Directive and the E-Privacy Directive which requires member states to ensure the confidentiality of communications and related traffic data through public networks. There is a 'carve out' which requires the retention of data by ISPs and allows its disclosure to the authorities, but this are in the context of criminal proceedings, safeguarding national security and similar circumstances. The carve out does not apply to civil proceedings such as Promusicae's against Telefonica.

So that's why the ECJ decided that member states are not obliged to implement legal measure which would override privacy rights in the case of civil proceedings for copyright infringement. So you're probably thinking that's a 100% victory for ISPs. Not quite.

The ECJ made clear that just because members states are not compelled to introduce such a carve out does not mean that they shouldn't or can't. Member states have to make sure that when they introduce national laws to implement EC Directives, and when those national laws are interpreted by national courts, they have to make sure that they maintain a balance of rights and principles.

So it seems to me that the door is left open for UK and other member states laws to be 'nuanced'. There is scope for national laws in this field to be refined so that in particular instances, and subject to particular safeguards, the 'carve out' contained in the E-Privacy Directive could be extended to cover civil proceedings.

But the better question to ask is how can everyone in the chain of content creation, delivery and consumption work more effectively together? An interesting initiative is the 'Accord Olivennes' reached in France recently between public authorities, rightholders and service providers.

For my no doubt many fluent French readers, it's worth a look. But I'll blog on that shortly.

Regards

Laurie Kaye

Comments

[hp lehofer]

I agree with your analysis that the ECJ decision in the Promusicae case "left the door open" for a more nuanced approach. But I'd like to point you to a new request for a preliminary ruling that puts this to a test. It is a request by the Austrian Supreme Court of Justice, not yet published in the OJ; for a preliminary rough translation of the questions go here: http://www.contentandcarrier.eu/?p=230