Browsing by Author "Loimaala, Iiro"

Several Member States of the European Union have engaged in diverse practices to enforce their national copyright laws in order to address the challenges the possibilities to communicate copyrighted property on the internet and especially peer-to-peer networks have created. These practices are loosely based on the Enforcement Directive and Information Society Directive which, at the international level, provide a relatively stringent way to protect copyrighted works in the digital environment. However, as this secondary law does not guide states regarding practical ways of enforcement, national solutions vary in several respects which has caused inconsistency and confusion across the Union, especially with regard to the foundations of the internet design and the protection of fundamental rights. The fundamental rights’ position in the European copyright enforcement has been discussed e.g. in context of the recent negotiations regarding the Telecoms Package and Anti-Counterfeiting Trade Agreement as well as in the subsequent Resolution of the European Parliament calling for a balanced and relevant copyright reform as well as protection of the fundamental rights online and preservation of the open internet. The study discusses a selection of today’s civil law remedies applied to enforce copyrights in the EU including site blocking measures, content filtering, graduated response systems and the right of information which are based on Article 8 of the Information Society Directive and Articles 8, 9 and 11 of the Enforcement Directive. Relevant European case law guiding their application and national solutions illustrating the limits of the directives are discussed. To clarify the contested relation between enforcement regulation and fundamental rights, selected practices are discussed with regard to EU’s obligations to respect the right to protection of personal data, confidentiality of communications and freedom of expression. The study identifies the limits the mentioned fundamental rights set for copyright enforcement in the current legal order of the EU including human rights instruments. Further, acknowledging the present political discussion and call for the reform of enforcement legislation, the study analyses practices which have the potential to go beyond what the European law and human rights instruments currently allow. Highlighting the inconsistencies and confusion between the selected national solutions and the European legal state the study points out topics which deserve to be reconsidered. It points out that introducing explicit safeguards clarifying the position of data protection, confidentiality of communications and the freedom of expression would benefit the current legal state and the legitimacy of the copyright law in general. Having regard to the anticipated renewal of the EU’s data protection framework, the paper also identifies some of its possible implications to the digital copyright enforcement.