Friday, January 07, 2011

EU fires a shot across the bows of the ISP's

The EU has recently released a report on the Application of Directive 2004/48/EC.

This is concerned with the enforcement of Intellectual Property Rights. ISP's have historically had a mere conduit defence but this report implies that the ISP's may be required to be more "helpful" to content owners. In the extracts below intermediary refers to ISP's (and others)

To quote from the report;

"The Directive makes a broad interpretation of the concept of 'intermediaries' to include all intermediaries 'whose services are used by a third party to infringe an intellectual property right'. This implies that even intermediaries with no direct contractual relationship or connection with the infringer are subject to these measures provided for in the Directive."

Crucially the point is made

"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."

Perhaps the ISP's will start to take a more positive approach as even a slight change in the law could leave them facing very significant liabilities.