Kiss and make up? Issues and trends in the EU's copyright enforcement policy
Series (Title): Kiss and make up? Issues and trends in the EU's copyright enforcement policy
In moving forward with the Digital Single Market the European Commission has to reconcile a broad range of ideas and interests. Online copyright enforcement is a policy area where opinions are highly polarized. This paper answers two research questions: (1) what is the online copyright enforcement policy of the EU and (2) how can it be improved? For this purpose it selects two cases to analyze: the Anti-Counterfeiting Trade Agreement (ACTA) and the intermediary liability provisions in the E-Commerce Directive. The goals of the paper are to provide a comprehensive analysis of the EU’s online copyright enforcement policy in order to identify commonalities in discourses and interests, and propose ways forward for policy. Underlying the paper is the assumption that argumentations and perceptions matter. Discourses are not the only factor determining the direction of the EU’s online copyright enforcement policy, but considering the polarization of the debate identifying common understandings of policy problems and solutions is essential. Drawing on lessons learned from ACTA and the E-Commerce Directive, the paper makes four policy recommendations on online copyright enforcement. In terms of the policy making process, citizen engagement must be embraced, and willingness and trust fostered among stakeholders. There is a need to focus on fixing common problems, while acknowledging each other as active policy stakeholders and knowledge creators, being transparent, precise, and attentive to the broader picture - thereby helping construct partnerships and positive examples for the future. In terms of the policy substance, proposals should always include high fundamental rights safeguards and a critical reflection on the interlinkages with other forms of Internet governance, such as cyber-security, child protection and net neutrality. Finally the paper recommends starting where stakeholders’ views overlap most and easier gains can be found: facilitating the development of legal services and improving the functioning of copyright; clarifying the notice-and-action procedures and hosting provisions in the E-Commerce Directive; and targeting commercially infringing services. Having invested the majority of time and resources in making the market for legal services work, the remaining problems with online copyright enforcement can be tackled. Crucial in this exercise is the balance between improving the efficiency of enforcement measures, streamlining limitations and exceptions, and ensuring fair remuneration for creators.