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In these last days the ACTA (Anti-Counterfeiting Trade Agreement) appears once again to be a topical issue. The European Parliament is discussing the text of the treaty that aims at establishing international standards on intellectual property rights enforcement. The final version was released on November 15th, 2010, and the signing ceremony was held on October 1st, 2011 in Tokyo, with the United States, Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea signing the treaty. The European Union, Mexico, and Switzerland attended but did not sign (countries can sign the treaty until March 31st, 2013).

The debate around this issue has yet to find common points of agreement between the main global institutions and the ICT giants such as Google, Intel and Sony. 

It’s no coincidence that for the last four years there have been a number of drafts, modifications and in some cases the complete redrafting of some of the articles of the ACTA. Recently, a huge number of major websites in the US – including Wikipedia, WordPress, Boing Boing – protested against the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property (PIPA).

In this scenario of international uncertainty it’s interesting to take notice of how some European Countries have dealt with the issue of online piracy from a legal perspective. 

In France the subject is disciplined by HADOPI (Haute Autorité pour la Diffusion des Oeuvres et la Protection des droits sur l'Internet), while in Germany and in Italy there have been legal drafts that have never been given shape or approval. 

It’s likely that the reason for holding back on legal provisions on the subject in Europe is due to the ongoing debate in the European Parliament that has been concerned for a long time with the opinions of experts, among them the “European Academics on Anti-Counterfeiting Trade Agreement” group, that have repeatedly raised the question of the compatibility of ACTA with EU law.

France
In May 2009 by the French National Assembly and the French Senate adopted the HADOPI. This is basically an agency that aims at punishing internet users who illegally download, and therefore aims at promoting legal download systems and at protecting the entertainment industry.

As stated by Art. L. 336-3 of the bill, HADOPI has to ensure that Internet subscribers "screen their Internet connections in order to prevent the exchange of copyrighted material without prior agreement from the copyright holders".

The HADOPI agency has initiated a tough “three-strike” policy to punish the illegal downloaders:

1. After a suspected infringement of copyright, an email is first sent to the offending Internet access subscriber, derived from the IP address involved in the claim.

The email specifies the time of the claim but neither the object of the claim nor the identity of the claimant.

The Internet Service Provider (ISP) is then required to monitor the flagged internet connection through the use of certain filters.

2. If, in the 6 months following the first warning, repeated offenses are suspected, a certified letter is sent to the Internet access subscriber.

3. If, during the year following the reception of the certified letter, upon accusation of repeated offenses by the copyright holder, the ISP is required to suspend internet access for a specified period from two months to one year. The Internet access subscriber is then blacklisted and other ISPs are prohibited from providing an Internet connection to the blacklisted subscriber.

This system has been widely criticised and has raised plenty debates both at a national and international level because it is accused of being in violation of fundamental rights of privacy and freedom of expression, on top of being excessively expensive.

In mid 2011 the results of a survey carried on by the French Minister of Culture, Frédéric Mitterand, showed that 7% of the 1500 people surveyed reported that either they or someone close to them received a warning letter for illegal downloading, and 50% of them stopped entirely.

Germany
Germany would like to impose greater responsibilities on the ISPs against illegal downloading of content on the Web. The Minister of Culture Bern Neumann is planning to import the French model of the “gradual warnings” although not to the extent of a German HADOPI as this would go against all of the public declarations issued by the Government on the subject of Internet piracy. The minister has underlined that the Internet Service Providers should bear some of the responsibility in protecting intellectual property, and that the ways in which they could be "held accountable" needed to be developed further. He also stated that there should be a warning system that cautions offenders before any serious legal consequences come into effect.

The Green Party came up with an interesting legal proposal to tackle the illegal downloading problem by creating a “creativity tax” or a Global license. These alternative ideas are the same approach that the opposition in France proposed during the debate over the HADOPI law.

The proposal foresaw a payment on behalf of the users, a supplementary charge to the internet fees that could be redistributed to the Copyright owners in Exchange for a decriminalization of downloading content for personal and non-commercial use. This system has however been judged as inapplicable and unconstitutional.

Italy
A very recent Italian proposal for legal bill is currently in exam in the parliament. It is already being widely criticised as it foresees that any interested subject may denounce online content whereby he deems being a damaged party for copyright violation. As a result of this legal complaint, the provision would allow the ISP to remove o render inaccessible the website charged with the violations of either illegal content or of copyright protected material.

It’s interesting to take notice that in comparison to the Stop Online Piracy Act (SOPA), that also drew considerable protests, the Italian approach to fighting piracy appears to be far more severe than the American one. The notable difference being that under SOPA, in any given case, the closure of a site deemed in violation of rights would require the ruling of a Judge while in Italy the ISP could and would have to act on its own accord on the basis of the information provided from the presumed damaged parties as failure to do so would expose the ISP to negligence with regard to the due diligence provisions under which it must act. The ISP therefore becomes liable for the violations it did not autonomously act upon.

In short, the changes brought to the first comma of the Italian provision under exam in Parliament specifies that “the facts and circumstances that bring to light the illicit activity or content that is available through an Internet Service  Provider, include  all  the  information  that  the provider disposes of, including information that has been provided by the holders of violated rights, thereby eliminating exemption from liability for the provider”.

In this regard, the European Court of Justice in a recent claim (C.324/09 – 12/07/2011) ruled in favour of preserving limited liability over content by establishing that Article 14 of Directive 2000/31 “must be interpreted as applying to the operator of an online marketplace where that operator has not played an active role allowing it to have knowledge or control of the data stored. The operator plays such a role when it provides assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting them”. Whereby only ISPs that have an “active role” would forego exemption from liability. It does however continue “Where the operator of the online marketplace has not played an active role within the meaning of the preceding paragraph and the service provided falls, as a consequence, within the scope of Article 14(1) of Directive 2000/31, the operator none the less cannot, in a case which may result in an order to pay damages, rely on the exemption from liability provided for in that provision if it was aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question were unlawful and, in the event of it being so aware, failed to act expeditiously in accordance with Article 14(1)(b) of Directive 2000/31.”

While section B of the article in the Directive states that “the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information” the recent ruling interprets this knowledge and awareness coming “on the basis of which a diligent economic operator should have realized”. Also, the third comma of article 14 of the mentioned Directive allows for the possibility of “courts or administrative authorities” to take action in requiring providers to terminate or prevent infringement, it would therefore appear well beyond the intention of the legislator to assume that any damaged party should have the same role, authority and effect on ISPs. This is a long way from the Italian provision that specifies that any party could and should be considered a source of information that needs to taken into account.

Conclusion
It seems that the legal pressure for enforcing copyright laws and legality on the Internet is being brought on the Internet service providers. The legal grounds for this are all but determined, and every ruling and new legislation in every country will help shape this trend of this extremely important “legal frontier”. Imaging future scenarios may be one way to envision the best legal provisions to uphold. One would question what would happen if the ISPs were tied down to full liability and would therefore become the designated “enforcers”?

Is this the “enemy” we would want to put on the front of a battle against a worldwide community of “pirates”?

by Alessandra Lonardo, GCSEC