What Is the Best Way to Tackle Online Copyright Infringement in the EU - Case Study Example

What is the best way to tackle online copyright infringement in the EU and why? Grade (May 10th, What is the best way to tackle online copyright infringement in the EU and why? Online copyright infringement in the EU is a major challenge facing many countries globally, and the European Union is no exception to these challenges. This is most especially because the European Union provides a basis for the member countries to cooperate in their electronic communication matters to ensure that the public benefits from the inter-operability of the online connectivity between the member states. The European Union Directive 2009/140/EC1 provides that the internet is an essential tool for education as well as for enhancing the practical exercising of the freedom of expression, while realizing the fundamental rights of the public to have the right to access of information. Thus, according to this directive, the regulation of the online use should be done in such a manner as to ensure that such fundamental rights and freedoms of the public are not interfered with. However, the duty and responsibility to tackle online copyright infringement in the EU has been imposed on the relevant authorities in the member state countries under Article 10 of the European Convention on Human Rights (ECHR) [1953]2, which provides that the exercise of the freedom of expression shall carry with it duties and responsibilities that are subject to restrictions or penalties necessary for protection of the rights of others. In this respect therefore, the EU must seek for the most appropriate way of protecting the online copyrighted materials, while at the same time ensuring to maintain a balance between protecting the freedom of expression of the public, and the deterrent of the infringement of the copyright protections. Therefore, the best way to tackle online copyright infringement in the EU is to apply judicial authority by both the copyright holders and the Internet Service Providers (ISPs) to monitor and deter unauthorized access and use of online copyrighted materials. The concept of judicial authority as a method of addressing online copyright infringement requires that the responsibility of identifying any copyright should be imposed on the copyright owners, while that of providing the IP addresses of the copyright infringers should be imposed on the Internet Service Providers, but upon a judicial order. Both the copyright holders and the Internet Service providers should then take the responsibility of warning the copyright infringers, upon the receipt of a court order. This method is compatible with the European Union Directive 2002/58/EC3, which requires that [personal data is protected and that it is only accessed by the authorized persons only. To impose the responsibility of monitoring copyright infringements on the copyright holders would ensure that the copyright holders are responsible for monitoring their copyrighted materials, while also ensuring they provide sufficient access of the copyrighted materials to the public. This would be in fulfillment of the requirements of the Directive 2002/22/EC4, which defines universal services as the minimum internet services that the member states should provide to their citizens at affordable prices and without distorting competition. On the other hand, imposing the responsibility of providing information regarding the online copyright infringers on the Internet Service Providers (ISPs) upon a court order will ensure that whenever necessary, the copyright owners can take a legal action against the copyright infringers, by using the information availed by the IPSs, but only when the courts have allowed access to such information. This requirement is in line with the requirements of the Directive 2002/19/EC5, which provides that the national regulatory authorities (NRA) must act to impose certain obligations on the internet operators, which are necessary for the protection of the electronic communication integrity among the member states. There are two major reasons why judicial authority has been selected as the best method for tackling online copyright infringement in the EU. First, the application of the judicial authority as a method of tackling online copyright infringement in the EU will serve to address all illegalities and public rights violations associated with certain laws and directives applicable in the EU. This way, the judicial authority method will create a balance between the privacy rights of the public and the rights of the copyright owners as provided under the Article 8 of Directive [2004/48]6. Article 8 of Directive [2004/48] provides that monitoring of the activities of the public online and the recording of their online IP activities should only be subject to criminal matters related to public security or national defense. Therefore, the internet service providers cannot merely be involved in recording and monitoring the online activities of all of their subscribers, since doing so would amount to an illegality and the violation of the E-Commerce Directive of the EU, Directive 2000/31/EC7 which provides that online activities by private individuals should not be subject to restrictions or monitoring by the Internet Service Providers (ISPs). This provision also echoes the provision of Article 15(2) of the European Union Community Law8, which requires that the interaction of the EU member states and public should not be subjected to unnecessary censorship, unless where there is a threat to the issue of national or public security. The application of the judicial authority would help to address the controversy that surrounds the operation of the United Kingdom’s Digital Economy Act 2010 (c. 24)9, which imposes the responsibility of monitoring infringements and issuing warning to infringers on the Internet service Providers (ISPs), including their disconnection of the subscribers for a period of time. Further, the selection of the judicial authority as a method of addressing online copyright infringement in the EU seeks to address the limitations associated with the Anti-Counterfeiting Trade Agreement (ACTA) [2011]10, which has subsequently been rejected by the European Parliament. The agreement provided for actions that would be in violation of the public right to freedom of expression, since the law required that the ISPs provide notification to the copyright holders to the effect that there is a copyright infringement by certain subscribers. The agreement would have required the Internet Service Providers to monitor and censor online communication through bypassing the judicial authority, which has eventually been found to be an illegality and a violation of the rights and freedoms of expression for the public. The judicial authority method suggested as the suitable method of addressing the online copyright infringement in the EU is also meant to address the limitation established by the Intellectual Property Rights Enforcement (IPRED) Directive [2011]11, which also introduced some form of illegalities in requiring the internet actors such as the search engines, the internet hosting services and the internet access providers to automatically censor communication, in an attempt to combat the unauthorized sharing of cultural work. Secondly, the major reason for which the judicial authority method has been selected as the appropriate method for tackling online copyright infringements in the EU is because it meets the requirement to treat Internet Service Providers as mere intermediaries, as opposed to responsible parties in an infringement. A decision in the case Polydor & Ors v Brown & Ors [2005] EWHC 3191 (Ch)12 delivered by the European Court of Justice (ECJ) stated that the public has the liberty to access online content from whichever the place and time as appropriately chosen by them. Thus, the ruling held that it would be beyond the abilities of the Internet Service Providers and those of other electronic service providers to be able to monitor every activity of the subscribers and users of their services. This helps to meet the requirement of the European Court of Justice (ECJ), which requires that the Internet Service Providers should only remain as intermediaries in internet connection. Further, in the case Promusicae v. Telefónica [2008] C-275/0613, the ECJ ruled that the EU member countries do not have to compel the Internet Service Providers and other telecommunication service operators to provide the personal data, including the IP address of the internet users suspected to have engaged in online copyright infringement. Such provisions help to address the limitations set by some laws such as the United Kingdom’s Digital Economy Act 2010 (c. 24) and the Anti-Counterfeiting Trade Agreement (ACTA) [2011] which has imposed the responsibility of monitoring and censoring the online communication on the internet service providers. Additionally, under the case Pinckney v Mediatech [2013] C-170/1214, the ECJ provided that the domestic courts have the jurisdiction of hearing the online copyright infringement cases performed in a different country amongst the EU member states where the infringement is for a copyrighted material from a given country. This ruling provides the basis for the selection of the judicial authority as the method of addressing online copyright infringement in the EU, since the ruling has empowered the courts to address all the infringement cases arising from diverse jurisdictions within the EU. Bibliography 1. Directive 2009/140/EC of the European Union 2. Article 10 of the European Convention on Human Rights (ECHR) [1953 3. Directive 2002/58/EC of the European Union 4. Directive 2002/22/EC of the European Union 5. Directive 2002/19/EC of the European Union 6. Article 8 of Directive [2004/48] of the European Union 7. Directive 2000/31/EC of the European Union 8. Article 15(2) of the European Union Community Law 9. Digital Economy Act 2010 (c. 24) 10. Anti-Counterfeiting Trade Agreement (ACTA) [2011] 11. Intellectual Property Rights Enforcement (IPRED) Directive [2011] 12. Polydor & Ors v Brown & Ors [2005] EWHC 3191 (Ch) 13. Promusicae v. Telefónica [2008] C-275/06 14. Pinckney v Mediatech [2013] C-170/12 Read More