Latest leak reveals that review of EU IP enforcement framework is currently in a deadlock

KAT-LEAK:
exclusive image of Brussels cabinet meeting
Leaks of internal EU Commission documents have seemingly become unavoidable events in-between one official release and another from this EU institution.

The latest leak, published by Politico, is that of an internal note to the attention of Commissioner Bieńkowska's Head of Cabinet concerning the forthcoming (?) review of the enforcement framework, including the Enforcement Directive.

As readers will remember, the Commission itself announced that this is part of the agenda when it unveiled its Digital Single Market Strategy (DSMS) two years ago (May 2015). Despite the timeframe indicated in the 2015 DSMS, a more thorough review of the enforcement framework is (or, rather, was?) expected in the first half of 2017, including the release of proposals to review existing EU legislation.

So far nothing has happened on this front. 

The reason - as this latest leak appears to suggest - is that there is no agreement within the Commission itself as to what direction should be taken. In other words, as the document admits, the reform process is currently in a "deadlock".

D(r)eadlock Kat
In addition, there might have been also a change of heart within some of the key players, possibly even including Commission's Vice-President Ansip. 

According to the document, it appears presumable that Commissioner Ansip has gone from strongest supporter to most vocal opponent of a review of the Enforcement Directive. The reason would be that at the beginning it appeared that rightholders would somewhat lose in the reform of the copyright acquis, so that a stronger enforcement would be needed as a "trade-off" [yes, the document employs this term]. Apparently this has not been the case. Hence, "such trade-off is no longer considered necessary given the final scope of the copyright proposals which do not materially cut into right holders positions."

The document then reviews a number of possible options on the table. 

An important (and unsurprising) aspect is the focus on the role intermediaries. According to the note, any proposals to harmonise intermediary liability in the context of a review of the Enforcement Directive and require intermediaries to take more pro-active measures "is a very far reaching call which does not fit into [the Enforcement Directive] systematically and it is at least doubtful if such an initiative would be in line with the E-Commerce Directive and the announcements made by the Commission in the 2016 Communication on platforms to respect the liability regime for platforms."

To be continued ...
[Originally published on The IPKat on 21 May 2017]

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