Several Parliamentary Bills regarding the compliance with copyright on the Internet were presented to Parliament in 2010-2011.
The explanatory memorandum shows that these proposals were prompted by several large-scale breaches of copyright and related rights happening every day. This means that the authors and other rightholders do not earn the income from the exploitation of their works and performance to which they are entitled.
The issues surrounding the compliance with intellectual property rights in a digital environment requires a balanced approach. It is a complex issue: several legal domains, as well as the developments at the European level and the technical judicial aspects of the different approaches, need to be taken into account. That is why the Minister of Economy asked the Intellectual Property Council to draw up an opinion on these Parliamentary Bills.
This opinion does not provide a thorough examination of this complex and broad issue. It is mainly intended to:
- Provide an opinion on the Parliamentary Bills regarding compliance with copyright on the Internet, which are currently being presented to Parliament. This can be found in part 3 of chapter 1 of this opinion;
- Give a general description of the various possible systems to guarantee compliance with copyright on the Internet. The description can be found in chapter 2 of this opinion;
- Examine various measures to promote the lawful sharing of protected works and performances on the Internet. This examination can be found in chapter 3 of this opinion;
The three chapters of this opinion are preceded by an introduction that emphasises the types of exploitation of protected works on the Internet and the qualification of these types of exploitation in relation to copyright (chapter 1, part 1) on the one hand, and the liability rules for breaches of copyright on the Internet, more specifically with regard to certain Internet providers, on the other hand.
The opinion itself, however, does not provide an exhaustive explanation of the current state of the legislation concerning compliance with intellectual property rights, particularly regarding judicial law and criminal law. The opinion also does not comprise an economic analysis of the impact that copyright infringements on the Internet may have on the creative sector, but the Intellectual Property Council does recommend that an economic study of that aspect be carried out (see chapter 4).
Although they are subject to the specific remarks in the subsequent opinion, the Council’s discussions resulted in the following general conclusions and points of view:
- It is in the public interest for laws to be properly enforced on the Internet as well. Copyright and related rights must be respected and effectively safeguarded with regard to the various types of exploitation of works and performances on the Internet. Maintaining the status quo would be detrimental to authors and other rightholders.
- The legal means to enforce copyright on the Internet must be in proportion to the legitimate intended purpose, which is for rightholders to be able to earn income from the use of their works and performances on the Internet. These measures must not be absolute and must, as indicated by the Court of Justice of the European Union, take into account other freedoms and fundamental rights, such as
- the freedom of expression,
- the right to freely conduct business,
- the protection of privacy,
- and the right to a fair trial.
Moreover, the measures need to correspond to the specific rules regarding the liability for certain activities by Internet service providers acting as an intermediary, as intended in European law.
- The legal means to enforce copyright on the Internet must complement the measures that promote the lawful sharing of protected works and performances on the Internet. In addition, they must contribute to the increase and protection of such online sharing, along with the other measures (see chapter 3).
- The legal means to enforce copyright on the Internet must provide legal certainty and predictability to all people involved: rightholders, content providers, Internet service providers acting as intermediaries, users, and consumers. Maintaining the status quo would be detrimental to authors and other rightholders.
- The current legal framework must be analysed to avoid duplicates or an overlap of legal means.
- There is no unique legal system to effectively enforce copyright on the Internet.
It is rather a question of taking into account the current legal means and considering a series of measures that combat,
- on the one hand, “the unlawful sharing of protected works and performances” (‘upstream measures’)
- and, on the other hand, “receiving/reproducing protected works and performances that were illegally shared on the Internet” (‘downstream measures’), see chapter 2.
Measures aimed at stopping activities where protected works and performances were made available on the Internet in a clearly unlawful and large-scale manner, from a quantitative or qualitative point of view, must be prioritised.
Regarding measures for consumers, the Council believes that an educational approach, for example in the form of warnings, is recommended, rather than a repressive approach, which is not recommended by the Council.
In order to protect the fundamental freedoms and rights, these measures must specifically entail “notice and action” procedures. If possible, they must be based on a close and active collaboration between rightholders, Internet service providers and governments.
The wording of these measures will have to be sufficiently precise in order to safeguard the principle of proportionality.
- There is no consensus within the Council regarding the question of whether the ‘private copy’ exception covers the reproduction of works being made available on the Internet illegally.
- Although the Council shares the objectives pursued by the bills that were presented to Parliament, particularly the enforcement of copyright on the Internet, it is of the opinion that some essential elements of those Parliamentary Bills raise sensitive legal questions, since they may be contradictory to the international and European obligations that Belgium must comply with.