EU legal framework
IRIS Plus 2015-3: Copyright enforcement online: policies and mechanisms
Author: Francisco Javier Cabrera Blázquez, Maja Cappello, Christian Grece, Sophie Valais, European Audiovisual Observatory
Pirates, as such, are somehow surrounded by a romantic allure: the Latin “pirate” was a “sailor, corsair, sea robber” and stems from the Greek “peirates”, who were “those who attack”. The root of the Greek word (-per) gives the meaning of “to try, risk”, from which the Latin “peritus”, i.e. “experienced”, which reinforces the idea that there is something heroic in there. But the meaning started to change as soon as a connection was established with the value of the goods that were part of the robbery: pirates were not Robin Hood, they were basically thieves, just maybe smarter than average.
As Jack Sparrow would say, pirates take what they can ... and give nothing back. The problem with thieves is that their activities benefit nobody but themselves, while hurting other people’s legitimate businesses. In the case of the production and circulation of creative works, it can also have a fatal impact on cultural diversity. It is therefore fundamental for rightsholders to ensure that piracy does not leave them with empty pockets.
The meaning of “one who takes another's work without permission" was first recorded in 1701, just a few years before the Statute of Anne was adopted in 1710, equipping Great Britain with the first act providing for copyright regulated by the government and courts, rather than by private parties. The roots of copyright protection therefore go a long way back in history, which also explains the constant search for tools able to ensure that the protection of copyright is effectively enforced.
This need for enforcement appears even more necessary in the online environment, where the action of “taking another’s work without permission” is particularly easy and often not perceived as an infringement of any law: on “pirate websites” everything is available for free and looks legal – many would say. Similarly, the wide availability of professional looking websites giving access to entire archives of protected works, often with logos of payment intermediaries and offering even subscriptions to their offers, not to speak about the advertisements they show, makes the enforcement activity not only complex, but also very debated.
It is not within the remit of this report to provide an answer to the questions that have been raised as to the economic impact of piracy on creative industries, but it aims at guiding our readers across the wide literature that exists in this field. The debate is particularly heated when it comes to the balancing of the fundamental right to copyright protection with other fundamental rights, such as freedom of expression, which shows that there is plenty of food for thought for policymakers.
The ambition of this report is to give a digest of what has happened so far in the field of copyright enforcement online. After having set the scene, providing the main trends of the audiovisual market and a discussion of facts and figures around piracy so as to contextualise the topic (chapter 1), it digs into the legal framework at international and EU level (chapter 2), before moving over to exploring the most innovative national models of copyright online enforcement tools adopted by public bodies (chapter 3) and by self-regulatory initiatives (chapter 4). A selection of relevant case-law both at EU and national level is provided (chapter 5) before rounding up with an outlook of the state of play of the decision-making process (chapter 6).