Statement to the Draft Report

Register IDs: BDWi: 66554994595-42, Web-Guard: 938641310866-54
ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
Statement to the
Draft Report
on ‘Towards a renewed consensus on the enforcement of
Intellectual Property Rights: An EU Action Plan’
2014/2151(INI)
Committee on Legal Affairs / Rapporteur: Pavel Svoboda
26.2.2015
Jörg Weinrich
IVD – Association of German Video Rental Dealers, CEO; www.ivd-online.de
Web-Guard - Association for Rights in the Internet, CEO; www.webguard-online.de
BDWi – German Association for Service Economy, head of the work group “Law in the Internet” www.bdwi-online.de
Contact:
IVD e.V., Mercatorstrasse 15, 40545 Düsseldorf
Tel.: … 49-211-577 390-0, E-Mail: [email protected]
We welcome the report on the EU Action Plan on the enforcement of Intellectual Property
Rights and particularly emphasises and supports the ‘follow the money’ approach, the improvement of IP civil enforcement procedures and the focus on commercial scale IPR infringements.
1) Consumer awareness and information
A German opinion poll by GfK1 indicates that people generally know what is allowed:
•
Only 2% believe, offering media content or making it accessible on sharehosters, P2Pnetworks or newsgroup services is permitted.
•
Only 3% believe, downloading media content in peer-to-peer networks is permitted and
11% believe you are allowed to watch new cinematic releases on portals like kino.to,
movie2k etc.
This knowledge is also a result of the press reporting about police measures taken against
the people who organized the illegal kino.to network.
Moreover in other countries of the EU, the press covered such topics as blocking illegal sites,
the ECJ-verdict about blocking kino.to, warning notices like Hadopi and police measures
against illegal offers in the Internet.
Therefore, we believe that the consumer is normally able to identify the main-offers in the illegal market. So we should set our priority on children so that the next generation also knows
what is allowed.
Therefore, we would welcome to learn more about best practices.
2) Developing new business models
In 2011 two-thirds of German consumers said that the legal online-offers of media-products
were satisfactory. Nearly the half said they have found the perfect offer. 2
Since 2011, the legal offers have improved in nearly all countries. Nevertheless, we have got
new piracy records:
•
The finale season of “Game of Thrones” has set a brand new piracy record in Summer
2014. A quarter of a million people shared a single file at the same time and 1.5 million
file-sharers downloaded a pirated copy during the first 12 hours. Interestingly, “Game of
Thrones” was available through legal channels in most of the countries.3
•
In February 2015 ”The Walking Dead“ (season five / part two) had 1.29 million downloads
within 24 hours. It was offered legally at the same time.4
GfK, Studie zur Digitalen Contentnutzung (DCN-Studie) 2012, www.gvu.de/media/pdf/852.pdf; p. 29-30
GfK, Studie zur Digitalen Contentnutzung (DCN-Studie) 2012,www.gvu.de/media/pdf/852.pdf; p. 26
3 http://torrentfreak.com/game-thrones-season-finale-sets-piracy-record-140616/
4 www.mediabiz.de/video/news/the-walking-dead-auch-bei-onlinepiraten-begehrt-wie-nie/390877
1
2
2
These records indicate there are other reasons for consumers using illegal content instead of
legal content. Is it the price? In an EU-study 31% of the respondents said: ”many films are
available online and I don’t see the point in paying“.5
A legal offer, which pays for the copyrights, can never be offered free of charge and is always more expensive than an illegal offer.
So, the best way to strengthen the legal suppliers is to reduce the amount of illegal copies in
the Internet. To reduce the number of illegal downloads, measures against ISPs and intermediaries are needed.
3) Involving all actors in the supply chain / Follow the money
Many actors offering illegal content in the Internet act anonymously. So you need a broad
approach to have a chance to reduce these illegal services.
Therefore, we welcome the plan to involve all actors in the supply chain. Looking at the illegal supply chain, it includes service providers like datacenters, advertisers and payment providers.
We tried to reduce ads on illegal sites by using the concept of “follow the money“ and in our
experience soft-law measures are not enough:
•
The people running these websites sometimes finance their illegal businesses through
fees for premium accounts and often by selling advertising space on their websites.6 So,
we and others associations informed companies that their ads had been placed on illegal
websites. Up to now about 2,000 warnings have been sent in Germany.7
But it is an ongoing issue: A lot of companies we have informed haven’t stopped advertising there. We still find some normal companies and a lot of semi-legal businesses like
gambling and sex chats.
But soft-law measures do not help against semi-legal sites. And they are powerless, if the
browser game industry use these sites to find new customers, who like (everything) for
free.
•
Additionally: The German Ministry of Economics organized a dialog between right holders
and ISPs for several years without any result.
Therefore, we recommend supporting such measures and to observe their important
success or failure factors. This is probably a job for the Observatory.
A profile of current and future audiovisual audience, p. 27; http://bookshop.europa.eu/is-bin/INTERSHOP.enfinity/WFS/EUBookshop-Site/en_GB/-/EUR/ViewPublication-Start?PublicationKey=NC0414085
6 FDS, OpSec, Studie zur Nutzung von Zahlungsdienstleistern bei der Verbreitung urheberrechtlich geschützter Werke,
2014; www.webschauder.de/studie-zeigt-bezahlsysteme-sind-lebensadern-der-share-und-videohoster/
7 See appendix: Our presentation for the European Commission, DG Internal Market and Services - Unit Fight against counterfeiting and piracy; June 2013
5
3
But that is not enough. We need measures against companies who support illegal offers.
Being involved in the piracy networks, there is a low level of risk for the intermediaries but a
chance to earn money. So they often do not take measures against the illegal sites, which
are their clients.
We need stronger legislation to counter the support of illegal sites through ads and payment
services. Right owners need the possibility to start civil proceedings against these supporters.
So we recommend - in addition to no. 20 - a new no. 5:
Believes that not all parts of the supply chain and their service providers (including
datacenters, advertisers and payment providers) are willing to stop their continuous support of illegal offers. Therefore, we call on the Commission to develop
measures by civil proceedings against continuous support of illegal offers.
4) Evolution of the legal framework
The legal framework is just a small part of the report but it is the most important one.
a) Enforcement Directive
An optimized right of information [EC-Directive 2004/28] would be helpful:8
•
One important chance to trace the perpetrators is to follow the money. But this is not
possible, because the right of information [Article 8 (2)] is limited. It does not include the
“bank account information“. Moreover if the right owner knows the bank account details,
he has no chance to get the name of the account holder to sue him. In these cases
“banking confidentiality” is stronger than the “right of information” [Article 8 (3e)].
There isn’t any fair balance as long as private data protection prevents civil proceedings
against perpetrators. The balance would be better, if the “right of information” includes
bank account information. A judge should be able to order a bank to give the right owner
the name (address etc.) of the perpetrator who owns the bank account involved in the
breach of copyrights.
•
It is difficult to get information from providers and intermediaries. Experience has shown
that providers often claim, that they store really little data, so they could not help to trace
the perpetrators. Right owners do not know what kind of information they store. Therefore, we recommend that it should be possible to ask the provider, under oath, in an interlocutory injunction if he has got any information.
8
See Appendix “Right of Information and Internet Piracy”
4
Therefore, we would welcome modifications to no. 18:
18. Takes note of the Commission’s report indicating that the IPR Enforcement Directive
is in some respects out of step with the digital age and insufficient for combating online infringements; calls on the Commission to come up with a detailed assessment of the limitations of the current legal framework as regards online activities and, if appropriate, with
proposals for adapting the EU legislative framework to the internet environment, which
takes payment processes and unwillingly intermediaries into consideration.
b) E-Commerce Directive (Article 12-15)9
More than fifteen years ago the E-Commerce-Directive introduced a exemption from liability
because the ISPs didn’t have many possibilities to influence the Internet and to regulate their
services.
As a “result” sharehoster (one-click-hoster, filehoster etc.) say they are not liable for the content of their hosting services and they offer millions of Downloads (we estimate at least 600
mio. direct downloads in Germany in 2014 10). Consumers are using these hosters overwhelmingly for illegal content.11 They often store the illegal content in European datacenters,
who earn a lot of money.
Today there are many technologies to regulate the Internet, so they ISPs could act without
an exemption from liability.
At the very least, providers should be allowed to use the exemption from liability only when
they actively avoid illegal content. Moreover, ISPs that provide services for unknown customers should be liable.
Therefore, we recommend a new no. 21:
Calls on the Commission to prove if the E-Commerce Directive takes into account
the fact that today there are numerous possibilities to regulate the services and to
prove if it would be possible to reduce the release from liability only for providers
who take measures to avoid illegal content and who know their customers.
9 Furthermore, the Initiative Urheberrecht demands new rules of liability in the answer to the Reda-Report:
„Die medienrechtlichen Ausnahmevorschriften, die Provider und Intermediäre von der Haftung für auf ihren Plattformen stattfindende Urheberrechtsverletzungen frei stellen, müssen überprüft werden; es bietet sich im Rahmen dieser Prüfung an,
leichte Rechtsverletzungen (im Zusammenhang mit „user generated content“ z.B. Nutzung von Werkteilen) im Rahmen von
Schranken gegen Vergütung – zu zahlen durch die Intermediäre – im Rahmen einer Schranke zuzulassen, um auch hier die
Basis für eine Versöhnung zwischen Endnutzern und Urhebern zu schaffen.“
www.urheber.info/aktuelles/2015-02-13_reda-entwurf-ini-urheberrecht-nimmt-stellung
10 Overview of the illegal distribution via hosting services in 2013: www.webschauder.de/spielfilme-2013-der-illegale-marktdominiert/
11 GfK, OpSec: Studie zur Nutzung von Sharehostern 2013, www.webschauder.de/erste-studie-zur-nutzung-vonsharehostern/ or www.faz.net/aktuell/feuilleton/medien/sharehoster-studie-komm-auf-meine-festplatte-12113447.html
5
5) Focus on SMEs
The access to justice is difficult if the law lacks precision and clarity. Unclear laws prevent judicial proceedings for SMEs. They can’t afford it. So a better legal framework is an important
contribution for SMEs.
If the report demands the Commission and Member States to put more pressure on the industry to develop licit offers (no. 8), it will be difficult for SMEs to take part. This will be a
business for American companies such as Netflix or iTunes.
6
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ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
Right of Information and
Internet Piracy
Possibilities, Limitations and Suggestions for
Improvements
March 2012
Jörg Weinrich
Geschäftsführender Vorstand des Interessenverbands des Video- und Medienfachhandels in Deutschland (IVD)
Geschäftsführer des Web-Guard - Verein zur Förderung der Rechte im Internet
Leiter des Arbeitskreises „Rechtewahrung im Internet“ des Bundesverbands der Dienstleistungswirtschaft (BDWi)
Contact:
IVD e.V., Hartwichstr. 15, D - 40547 Düsseldorf
E-Mail: [email protected], Tel.: 0211-5773900
I. Internet Piracy
Customers find copyright infringing products through using piracy portals like thepiratebay.se
or boerse.bz.
They download the files either from P2P-networks or directly from filehosters (also called
sharehoster, streaminghoster, one-click-hoster or cyberlocker). For example: rapidshare.com, uploaded.to or megavideo.com (closed).
According to the German DCN study, illegal downloading using hosters is more important:
16 % P2P
42 % Sharehosters
42 % Streaminghosters (www.gvu.de/media/pdf/780.pdf)
Internet Piracy
Downloader
Google, Bing etc.
Piracy Portal
Link referer
Filehosters (Download and Streaming)
Bit-Torrent
E-Mule
link publ ishin g
file upl oad
Uploader
Filehosters pay financial rewards to uploaders who generate a lot downloads.
2
Hosters generate turnover through advertising and selling premium accounts.
According to the indictment
against the owners of the hoster
megaupload, the “Mega Conspiracy” collected $150 million
subscription fees from premium
users and $25 million through
online advertising.
Piracy and money
income
expenses
Advertising
industry
Add s
The money was transferred by
online payment. They got
$100,000,000 through PayPal
and $5,000,000 through Moneybookers.
Host Provider
p remiu m
accou nts
finan icial servers etc.
rewards
Payment Provider
Filehoster (Download and Streaming)
II. Problems with information rights
The EC-Directive 2004/48 gives the owners of (copy)rights a ”right of information“ (Article 8).
This right of information could help to find perpetrators within hosting services:
If a customer loads a lot of files onto a filehoster, the hoster should know who it is. He could
have an address, an e-mail-address or even payment information because the uploader paid
for a premium account or received a financial reward for uploading a lot of interesting files.
Uploaders of Sharehosters and Streaminghosters
Possibilit ies of investigation and using of information rights
l ink publ ishin g
Perpetrator‘s
address
Piracy Portal
Copyright owner
finds uploader
and “t heir“ files
fil e uplo ad
Shareor
Filehoster
Streaminghoster
ha s information ab out
the perp etrator:
Email Provider
address
bank account information
address
email address
Payment Provider
address
payment
information
3
Web-Guard and some copyright owners tried these ways and found some problems:
1) Bank account information
Filehosters do not store addresses of customers. E-mailaddresses of customers are often
used anonymously. So the only
relevant data are the bank
account details.
But the copyright owners don’t
have any right to get this information, because they are not
listed in the law (Higher Regional
Court - OLG Köln, verdict of
25.03.2011 – Az. 6 U 87/10).
We recommend that bank account information is added to Article 8 2.a.
2) Banking confidentiality
Moreover, it has to be clear that banks have to provide this information to trace the perpetrator. Otherwise they are not allowed do it because of “banking confidentiality” ((Verdicts:
Higher Regional Court - OLG Stuttgart 23.11.2011 – Az. 2 W 56/11 and Regional Court- LG
Hamburg 19.8.2011, Az. 408 HKO 3/11).
The “right of information” has to be stronger then the banking confidentiality. Article 8 3 e
should to be adapted.
Uncooperative filehosters
Some anonymous filehosters refuse to delete copyright infringing files after they are
informed about the files (no notice and take down). These filehosters offer premium
accounts, so you can register and pay the premium account and you could have a
possibility to find the perpetrator. But you will not get the address of the perpetrator
because of bank confidentiality.
Uncooperative Filehoster
Copyright
owner
Pre mium account
Ri ght of
informatio n
Payment
Payment Provider
Address
Unkooperativer
Uncooperative
Shareoder
Streaminghoster
Filehoster
(Download
or Streaming)
refuses to delete illegal files
Higher Region al
Court S tuttgar t
4
Problem for trademark rights
Moreover, if the owner of a trademark buys a counterfeit from a perpetrator in the
Internet (ebay, amazon marketplace or an illegal pharmacy) he has to pay. So he has
got bank account details. But he will not get the address of the perpetrator because of
bank confidentiality.
3) Direct or indirect
Article 8 1 c states that ”services used in infringing activities“ have to provide information. It is
obvious that a hoster is used in the infringing activity of an upload or download. But when the
perpetrator uses a bank to pay this hoster or uses an e-mail-address to be a customer of this
hoster then it is not clear if these services are used “in” infringing activities.
So it should be clear that all services which are used directly or indirectly for the infringing activities have to give information.
4) Trustworthiness
Right owners do not know what information the provider stores. Experience has shown that
providers often claim they store nearly no data:
a) In the case of P2P-networks, you can see the IP-addresses of the down- and uploader. The access provider knows who uses this IP-address. But only some access providers give names and addresses belonging to IP-addresses.
Others say they don’t have any data or they do not know how to get the data out
of the system.
Access providers who refuse to give addresses are becoming more important for
P2P copyright infringements.
Market share I/11
onlinekosten.de (1)
Access Provider
Deutsche Telekom AG
Hansenet / Alice / o2
Vodafone / Arcor
First half-year 2011
48.5%
10.4%
13.8%
Share of copyright infringements (movies) (2)
January 2010
22.8%
23.4%
20.2%
June 2011
12.4%
28.1%
26.4%
(1) www.onlinekosten.de/breitband/breitbandkunden
(2) OpSec Security in regard to infringement in the P2P
sector
b) Filehosters claim that persons who uploaded more than hundred movies do
not have a premium account and so they don’t have any data about this person on record.
c) Payment providers claim they have only parts of the mobile phone number
used for paying the hoster. Three months after the payment they cannot say
which mobile provider paid them.
5
Normally the copyright owner will loose the case. The judge believes the providers that they
don’t store the data. But nobody knows if it is true and the right owner can’t give evidence
that the data is available.
The only possibility is to start a principle proceeding where the CEO has to claim, under oath,
that he has no data. But this would take a year to get information. But after a year there won’t
be any information left.
We recommend that it should be possible to ask the provider, under oath, in an interlocutory
injunction.
III. Result
The “right of information” can help within P2P networks, if the access provider is willing to
cooperate. But verdicts make it impossible to use it for copyright infringements on filehosters.
Uploaders of Sharehosters and Streaminghosters
Poss ibilities of investigation and using of information rights
l ink publ ishin g
Perpetrator‘s
address
Piracy Portal
Copyright owner
finds uploader
and “their“ files
fil e uplo ad
art. 8 1c
“in “
Email Provider
address
bank account information
Hi gher
Reg ional Co urt
St uttgar t
Shareor
Filehoster
Streaminghoster
ha s information abo ut
the perp etr ato r:
address
(u nusua l)
e-mail address
Payment Provider
address
Hig her Region al
payment
Co urt Colo gne
information
So the “right of information” is only useful in a small part of the piracy market.
6