The European Commission’s Stakeholders’ Dialogue on illegal uploading, downloading, and file-sharing was concluded with the publication of a Synthesis Report. The Report sums up the content of the meetings and discussions held by various participants to the Dialogue.  

BACKGROUND

Stakeholders’ Dialogues are a working method of bringing together a representative group of stakeholders to discuss concrete problems in the field of intellectual property rights enforcement and to explore possible ways of voluntary cooperation in compliance with the existing legal framework.  

THE REPORT  

The Report states that all parties agreed that raising awareness and education were essential to producing a comprehensive strategy on encouraging legal use of online content. Both rights holders and telecom operators/internet service providers (ISPs) already have in place different specific awareness campaigns. The Report notes, however, that it is still very difficult to assess precisely the impact of such campaigns. Rights holders agreed on the need to continue with awareness campaigns and even to step up efforts but found that deterrent measures (i.e., sanctions) were needed in respect of repeated acts of infringement when warnings have no effect.  

All the participants agreed that providing an alternative to piracy through the provision of legal content offerings was crucial. However, rights holders did not consider that legal content offerings alone were likely to reduce piracy, although without them, combating piracy would be more difficult. ISPs on the other hand said that the legal content currently available was insufficient, particularly in terms of conditions and diversity. In the view of the ISPs, wider availability of such content was the main tool for reducing piracy substantially and they urged rights holders to do more, particularly in crossborder situations.  

On the sharing of information, the ISPs explained that sending warnings and notices to potential infringers identified by rights holders was not free of error and required human intervention. Consequently, there were important financial implications to consider. Further, ISPs said that they did not want to become involved in disputes between rights holders and infringers and expressed concern at the data protection aspects of information sharing, particularly in the sending of notices.  

The current legal framework was discussed in great detail. Rights holders highlighted the difference between Member States in provisions on the protection of personal data and privacy and referred to the difficulties of exercising the right of information in civil procedures due to national data protection rules. ISPs, on the other hand, perceived the current framework to be sufficient to protect the different rights and interests.  

They pointed out that national laws had only been amended recently in some Member States in order to comply with the IP Enforcement Directive (2004/48/EC) and that it would take time for national courts to apply these new rules in a consistent manner. As for sanctions, some rights holders advocated the use of a system of warnings followed by a full set of deterrent measures throughout the European Union. ISPs, on the other hand, stressed that sanctions should remain the prerogative of the courts.  

With regard to technical measures, rights holders said that ISPs have the capability to exercise significant control over traffic generated by their subscribers. ISPs disagreed, saying that it was impossible to detect the legal status of a copyright work shared among users. They did not favour technical measures and considered them contrary to EU law.  

COMMENT  

Despite the obvious disagreements, the Dialogue facilitated an exchange of views on the basis of substantiated arguments, resulting in much better mutual understanding of the opposing positions, which in itself should be regarded as a substantial achievement. Most, but not all, participants said that they would be willing to continue to work together, albeit in a limited number of areas.