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Recent European Litigation on the Legality of Internet Filtering for Copyright Reasons


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Darius Whelan
University College Cork
Global Congress on Intellectual Property and the Public Interest
American University Washington College of Law
Washington, DC, August 2011

Published in: Education, Technology
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Recent European Litigation on the Legality of Internet Filtering for Copyright Reasons

  1. 1. Recent European Litigation on the Legality of Internet Filtering for Copyright Reasons<br />Darius Whelan, University College Cork<br />Global Congress on IP and the Public Interest, Washington, August 2011<br />
  2. 2. E-Commerce Directive <br /><ul><li>Art. 12 – mere conduits
  3. 3. Art. 15 – no general obligation to monitor
  4. 4. Recital 45 – injunctions </li></ul>Copyright InfoSoc Directive <br /><ul><li>Recital 16 - without prejudice to E-Commerce Directive
  5. 5. Art. 8(3) - injunctions against intermediaries</li></ul>Enforcement Directive <br /><ul><li>Art.11 injunctions </li></ul>Framework Directive 2009 <br /><ul><li>Respect fundamental rights
  6. 6. Due Process / judicial review </li></ul>2<br />
  7. 7. EMI v UPC (2010)<br />Internet Piracy devastating music business<br />Privacy – not infringed. IP addresses just a set of numbers.<br />Copyright is private property right<br />Irish Act (2000) only permitted orders re “removal” but UPC is mere conduit<br />Art.15 no general obligation to monitor not relevant <br />Did not grant order due to wording of Irish Act <br />Previous Irish “three strikes” settlement still in place <br />3<br />
  8. 8. 4<br />
  9. 9. Scarlet v Sabam (2011)<br />5<br />Opinion of Advocate General. Not binding<br />Very wide Belgian court order in issue<br />Order unduly restricts privacy / personal data<br />Law should be accessible, clear and predictable<br />Filtering and blocking not accompanied by adequate safeguards<br />
  10. 10. 6<br />
  11. 11. R. (BT and TalkTalk) v SS BIS (2011)<br />Digital Economy Act 2010<br />Role of ISPs “passive”<br />Mere conduit issue – ISPs were not being made liable for the info. transmitted<br /> Proportionality? Parliament had struck balance<br />Code could deal with library hot-spots, etc.<br />IP addresses are personal data<br />Derogation under E-Privacy Directive – right to property<br />No reference of questions to ECJ<br />7<br />
  12. 12. 8<br />
  13. 13. Newzbin 2 case (2011)<br />9<br />Order to block access to Newzbin site<br />Contrasted with Scarlet v Sabam<br />Art. 1 First Protocol ECHR – property rights<br />Art. 10 ECHR – freedom of expression<br />Apply copyright legislation in manner which accommodates freedom of expression<br />Deference to Parliament<br />Claimants’ property rights clearly outweighed FoE rights of newzbin users, and even more clearly outweighed FoE rights of operators of newzbin <br />
  14. 14. 10<br />
  15. 15. Conclusion<br />Lack of clarity re some key issues in European law, e.g. ambiguity about due process in Framework Directive; Promusicae balance unclear <br /> Due Process arguments have potential. Also art.6 ECHR.<br />Note relationship property rights Art.1 First protocol and other rights such as privacy and FoE. More nuance in newzbin 2 case on this – apply legislation in manner which accommodates FoE<br />Can internet users waive fundamental rights? Is it proportionate? Are customers aware of click-wrap terms? Couldn’t files have been downloaded by person not a party to contract?<br />11<br />
  16. 16. 12<br />Courts’ approaches affected by attitudes. EMI v UPC – anger at copyright violations. Scarlet – More concern about internet users’ rights<br />Scarlet case very successful from human rights perspective, but very much affected by facts of case<br />Orders against ISPs inherently questionable – result in over blocking and under blocking; users can circumvent blocking systems; orders interfere with net neutrality <br />