EU copyright regulation must blend IP protection with Internet freedom

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Copyright and the Internet are not two incompatible concepts. Rather, they should walk hand-in-hand, writes Frédéric Donck.

Frédéric Donck is Director of the European Regional Bureau of the Internet Society, an organisation promoting the continued evolution and growth of the open Internet through dialogue among companies, governments, and other organisations around the world.

The successful development of the Internet with all its indispensable benefits for society at large has prompted policymakers, legislators, right holders, content creators, businesses, civil society bodies and users, to engage in discussions regarding the modernisation of Europe’s copyright regime.

The range of new technologies and the speed of innovation inevitably raise intellectual property issues - never before has it been so easy to copy and distribute content challenging, this way, copyright law’s existing culture and the business models structured around it.

To this end, there are some voices within the European Union calling for the need to update the current copyright regulation in an effort to alleviate the existing tension between copyright and Internet technologies and to ensure the further development of the Internet.

Specifically, EU Internal Market Commissioner Michel Barnier, the key driver of the review of the copyright regulation together with Digital Agenda Commissioner Neelie Kroes, recently highlighted, in a speech in Brussels, the need of cross-border access to content in a single European digital market. Equally, Kroes rightly pointed out, when speaking in Chicago last month, that online licensing restrictions often make it impossible to buy music legally, referring to the many different copyright rules across Europe need to be harmonised.

The challenge however is how to strike a balance between IP protection and Internet freedom. The Internet Society supports Commissioner Barnier’s call for a rational debate to ensure copyright does not become an obstacle to the internal market, but instead remains a tool to support creation, innovation, participation and fundamental rights, enhancing the quality of production and fostering investment.

What Europe needs is a copyright regime, which is effective, efficient, and replicable across jurisdictions. Accordingly, copyright laws must be proportionate and fair, provide due process, respect fundamental rights, and not unreasonably impact third parties.

An alternative regime that focuses on awareness-raising, education, and offering affordable legal alternatives is vital for moving forward, as  technical measures to combat online copyright infringement can be circumvented and will therefore not be an effective solution.

Over the past few years, for instance, it has become evident that infringers can easily bypass solutions that focus on preventing infringement via a subscriber’s connection to the Internet through their ISP by shifting to another Internet access provider; similarly, there are also ways of accessing domain names that have been subjected to seizure by using instead their IP addresses or alternate DNS servers.

We, therefore, have to make a choice: a copyright approach that seeks to underscore a balance between all rights is preferable, even if there are some obstacles to overcome. We need to understand the motives behind copyright infringement and provide information about what is legal and what is not accessible to all Internet users so that they can make their own, knowledge-based judgement.

The Internet Society believes the methods used for detection of infringement must be reliable, accurate and respectful of privacy. Stringent data protection rules and security are essential and should be preserved; copyright procedures should neither diminish innovation nor the development of the Internet; equally, sanctions should only be applied to proven, rather than suspected, infringement, and they must be proportionate, fair, appropriate, and applied with due process by an independent suitably qualified third party.

Copyright and the Internet are not two incompatible concepts; rather, they should walk hand-in-hand. We believe that a balance between the protection of intellectual property rights and other fundamental rights is necessary, and it is through this balance that the Internet’s open architecture and generative nature will be preserved. An international, multi-stakeholder dialogue constitutes a vital component in achieving this.

In the debate on a new European regulation, we should recall that copyright was introduced to promote innovation, creativity and protect freedom – freedom of expression, the ability to publish and share freely as well as the right to express ideas. We need to find a way to reconfigure these core values in the Internet era.

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