May 4, 2016
Content But Not Contented? An Update on the EU’s Digital Single Market Strategy
Content But Not Contented? An Update on the EU’s Digital Single Market Strategy

Last week’s leaked draft of the paper addressing the EU’s Digital Single Market Strategy (available here) (‘DSMS’) provided an interesting indicator of things to come when the final report is published by 25 May. For those who missed the European Commission’s initial announcement last March (here), the DSMS aims to bring EU law up to 21st Century speed with a variety of online issues that are not adequately covered by existing pan-EU legislation, including copyright, e-commerce and geo-blocking.

Of interest to brand owners and IP practitioners alike are the issues of online platform providers’ liability for user-generated content (UGC) and how aggrieved parties may go about removing this content via a takedown process.

Contrary to what some had expected, there will be no expansion of the definitions of an Internet intermediary under the E-Commerce Directive. Currently, platform operators are not liable for infringing material which is hosted, cached or carried by them, but which they know nothing about (liability only commencing once they are made aware of the infringing content by a rights holder). The rationale for this is that the current list is sufficiently fluid enough to deal with technological advances, that it will be reviewed instead under the Audiovisual Media Services Directive in Autumn 2016 and that self-regulation has a role to play. Whilst the hosted/cached/carried definitions may have worked well historically for providers where IP infringement is less rife and perhaps more incidental, the lack of a defined list is difficult to square with the growth of online platforms offering UGC that have the potential to habitually breach copyright – as too is the idea that providing copyright owners with a sum based on the online platform’s use of a brand's rights is fair compensation.

Another area that was rebuffed by the Commission was the concept of introducing an EU- harmonised notice-and-take-down procedure. Instead, this will remain at the discretion of individual Member States. Again, this will be a disappointment to brand owners who are faced with cross-border infringements and who can encounter difficulty in getting engagement with different platform providers, including those outside of the UK.

Unless there are significant amendments to the final paper, then brand owners can only hope that more promising news will follow in Autumn 2016 via amendments to the Audiovisual Media Services Directive. What’s clear from the above is that despite any initial furore surrounding the leaked status of the document, the best course of action for brand owners in addressing online content infringement remains having in place effective brand and content watching services together with a structured takedown program.

Stobbs has a wealth of experience in dealing with online infringement issues. Please feel free to get in touch if you would like to discuss these issues further.

Online Brand Enforcement

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