Effect of the current provisions on the level of infringements

Since in many Member States the EU legal framework on copyright enforcement has been transposed with substantial delay and related implementation reports were far from detailed, there are little public updated data to draw detailed conclusions on their level of implementation and impact. 280

However, already back in 2010, based on the findings reported in the Staff Working Paper accompanying the Commission Report on the Application of the IPRED, the Commission had concluded that the legislative and non-legislative instruments in place could not be considered powerful enough to combat online infringements of intellectual property rights effectively.281

This overall assessment has also been confirmed by the Commission’s latest preferred policy approach, which consists in focusing policy initiatives on criminal instruments and promoting Codes of Conduct and the ‘follow the money’ approach as the first line of defence to deal with the problem and leave civil injunctions as a second-best residual remedy.

Most of the more recent quantitative evidence available at the EU level comes from the statistics of the 2012 public consultation on civil enforcement of intellectual property rights: efficiency of proceedings and accessibility of measures, and hardly any pan-European

279 _{See for instance Steadman, I. (2013), ‘Icelandic court declares WikiLeaks donation ban “unlawful”’,}

Wired, available at: www.wired.co.uk/news/archive/2013-04/26/wikileaks-wins-visa-case; and with reference to the 2006 AllOfMP3 case, see Russian Pirates get Visa in Court

http://eng.cnews.ru/news/top/indexEn.shtml?2007/07/13/258719.

280 _{Few Member States transposed the Enforcement Directive on time, i.e. by the agreed deadline only} five Member States (Denmark, Hungary, Italy, Slovenia and the UK) were compliant. Most Member States were late. As a result, 20 infringement procedures for non-communications had to be started, namely against Austria, Belgium, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Ireland, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Slovak Republic, Spain and Sweden. A referral to the CJEU was made for Germany, Luxembourg, Sweden, France and Portugal. The last Member States to implement the Directive were Germany (July 2008), Sweden (April 2009) and Luxembourg (June 2009), after a decision confirming an infringement had been taken by the CJEU. When the Commission in 2010 reported about status of transposal Greece seemed not to have implemented the Directive in its entirety, but only in respect of copyright and related rights. Source: Commission Staff Working Document, Analysis of the application of Directive 2004/48/EC of the

European Parliament and the Council of 29 April 2004 on the enforcement of intellectual property rights in the Member States. However, as late as end-2010 details on concrete implementation at the national level were often missing or provided with very limited details so that the Commission could not reach a conclusion on the implications the Directive had on the development of the information society particularly in Cyprus, France, Luxembourg, Malta, the Slovak Republic and the UK. No further reports on implementation were envisaged.

281 _{See Staff Working Paper accompanying the Commission Report on Application of Directive} 2004/48/EC of the European Parliament and the Council of 29 April 2004 on the enforcement of intellectual property rights SEC(2010) 1589

comparative study has been specifically dedicated to the topic of copyright enforcement online.282

Anecdotal evidence on operations targeting major infringers is available from the US Government 2014 Out-of-Cycle Review of Notorious Markets Report, but its data seem to confirm that most enforcement is actually carried out by means of criminal proceedings, whereas civil injunctions play a relatively minor role in enforcing copyrights online across the EU, possibly with some notable exceptions. But since the data presented in the US Report are not systematic it is difficult to draw strong conclusions.

In many EU Member States where monitoring of online copyright enforcement takes place, it usually refers to activities carried out outside the scope of the InfoSoc Directive and IPRED, as these are deemed residual and scarcely relevant compared to other means of enforcement in the countries concerned. As a result, regular statistics are available on HADOPI operations in France, or on AGCOM-managed activities in Italy, or on the special operations of the Ley Lassalle in Spain.

Much in the same vein, the Netherlands keeps regular track of notice and take down procedures and injunctions managed within the framework of the BREIN Code of Conduct. This is the only policy instrument the country has long relied upon, as infringement at the subscriber level was not deemed actionable until recently.

The UK used to have a comprehensive monitoring scheme in place in the form of quarterly surveys, but this was subsequently discontinued due to lack of funding. In the UK, due to delays in transposition, InfoSoc provisions have become actionable since 2011 and right- holders have been relatively active at targeting the supply-side through court injunctions which to date have required ISPs to block subscriber access to around 100 infringing websites. But there are reports that the country is also moving towards code of conduct- based approaches to simplify procedures and make them more expedient and user-friendly. Accordingly, the UK has also felt the need to streamline the blocking of infringing websites by other extrajudicial means than Section 97A of the Copyright Designs and Patents Act. Whenever governments are not involved with a supervisory function, there is patchy information available about the coverage and level of activity of private Memoranda of Understanding or codes of conduct. To fill this gap, the European Observatory on Infringements of Intellectual Property Rights is reportedly planning a study on voluntary collaboration practices in the online enforcement of intellectual property rights, but they are at a very early stage and it is unclear what degree of focus the study will have on quantitative analysis.

The proposals tabled so far envisage both a mapping of existing voluntary collaboration practices and the analysis of several selected cases. OHIM has also presented a proposal for a study that would focus on a detailed analysis of the functioning, funding and popularity of copyright-infringing websites with a focus on commercial-scale copyright infringements only.

The limited effectiveness of current InfoSoc provisions is proven by the fact that many countries have felt the need to encourage extrajudicial procedures, not only to decrease

282 _{The notable exception is represented by the UK Intellectual Property Office (2015), International}

report on the Comparison of Approaches to Online Copyright Infringement, from which most of the information reported in this Section is drawn on.

costs but to speed up implementation. This has led to the emergence of codes of conduct or administrative-based notice and take down procedures, which have proven to be rather quick (e.g. 2-5 days in the Netherlands; 12 to 35 days in Italy as managed by AGCOM, 15 days in Spain) and relatively inexpensive – in contrast with existing legal options to pursue offenders through the courts.

In addition to quicker action, the lower cost (a HADOPI administrative notification would cost around €1 plus an additional €2 for the ISP, although these data are controversial283_{) and} increased simplicity for rights owners means that even small and medium enterprises can engage with the process in some countries, e.g. Italy, where this was reported not to be the case in the past because of the complexity of getting injunctions from courts.

In the EU, there are few studies on the effectiveness of civil injunctions in curbing infringement at the consumer level. To the contrary, in the US a substantial amount of economic literature has been made available about the theoretical assumptions under which an action undertaken upon an anticipated loss could be justified with a view to its expected deterrent effect (Litman, 2005; Hughes, 2005). The industry decision of moving to Memoranda of Understanding with ISPs as soon as these became possible and refraining from taking further civil injunctions seems to indicate that undertaking a loss-generating civil injunction was considered a second-best strategy by right-holders themselves.284