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Resolution 2110 (2016)
Intellectual property rights in the digital era
1. The Parliamentary Assembly welcomes
the fact that, thanks to the Internet, authors of creative works and
holders of intellectual property rights are able to offer their
works globally and users can access creative works instantly – and
through inexpensive fixed or mobile access devices – anywhere in
the world. The Assembly notes with concern, however, a decrease
in the production and diversity of creative works as a result of
geographical imbalances and shifts in their production, leading
to the emergence of a few excessively dominant market players and
a concentration of creative industries in a few parts of the world.
2. The Assembly is also concerned by a de
facto erosion of intellectual property rights in the
digital era, which has been facilitated by legislative reforms weakening
intellectual property rights. Intellectual property is an important
cultural value and economic asset in Europe and an erosion of intellectual
property rights would have a significant negative impact on Europeans.
3. The Assembly recalls that intellectual property is protected
under Article 1 of the Protocol to the European Convention on Human
Rights (ETS No. 9); the effective exercise of this human right may
require member States to adopt positive protection measures against
interference by others.
4. The Assembly reaffirms that digital services do not take place
in an imaginary borderless cloud, but are real services combining
real producers, distributors and customers, all of which are based
in countries with their own specific legal systems. It is therefore
necessary and legitimate for States to apply their laws to such services,
including laws on intellectual property, consumer protection and
taxation. The geographical location of digital services and content,
as well as their possible geo-blocking, are therefore an appropriate
way to prevent the circumvention or violation of national laws,
because the territorial application of intellectual property rights
is also applicable online.
5. The Assembly values the growth in human communication resulting
from the use of Internet-based social networks and platforms with
user-generated content; it recalls that users are the rights holders
of their creative works uploaded on such networks and platforms,
as well as of their personal data, unless they expressly waive such
rights. Users are likewise primarily responsible for respecting
the intellectual property rights of others, especially if they play
an active role in content dissemination. Recalling the case law
of the European Court of Human Rights, the Assembly emphasises that
Internet service providers are also liable for intellectual property
rights violations, if they knowingly benefit commercially, or otherwise,
from such violations by their users.
6. The Assembly acknowledges that open licensing of creative
works can be an option for the respective copyright holders in order
to voluntarily share their work with others. As this option is easier
for financially well-established individuals, institutions or companies,
its potentially limiting impact on the pluralism of creative works
should be taken into account. The Assembly also considers that,
by offering technological solutions to combat the de facto erosion of intellectual
property rights, the private sector can play an important role in avoiding
stricter legislation and stricter case law by competent courts.
7. Having regard to the current legislative initiatives within
the European Union by its Commission and Parliament, and referring
to the protection of intellectual property rights under Article 17.2
of the Charter of Fundamental Rights of the European Union, which
binds all organs of the European Union, the Assembly stresses that:
7.1. national transpositions and
applications of European Union law must comply with the European Convention
on Human Rights and in particular Article 1 of its Protocol;
7.2. the European Patent Office, and Directive 2004/48/EC on
the enforcement of intellectual property rights, should be strengthened
in the framework of Article 118 of the Treaty on the Functioning
of the European Union, which calls for measures for the creation
of European Union-wide intellectual property rights and for the
setting-up of centralised European Union-wide authorisation, co-ordination
and supervision arrangements;
7.3. the European Convention on the Legal Protection of Services
based on, or consisting of, Conditional Access (ETS No. 178), which
entered into force in the European Union on 1 January 2016, should
be used for strengthening the protection of intellectual property
rights;
7.4. efforts to create a digital single market within the European
Union should not favour online services over offline print media,
film and cinema or terrestrial audiovisual services, but avoid a
distortion of competition by taking due account of the possible
dominance of the gatekeepers of online services and their impact
on the pluralism of creative work and cultural expression;
7.5. Europe-wide licensing arrangements should be supported
in order to facilitate the cross-border portability of online content
and services.
8. The Assembly therefore recommends that member States:
8.1. promote public awareness, especially
among Internet users, of the human right to the protection of intellectual
property and the importance of this right for the cultural diversity
and the economic well-being of our societies;
8.2. promote the electronic identification of intellectual
property rights on the Internet by supporting widely accessible
technical facilities for this purpose and raising awareness among
authors of creative works;
8.3. adopt such legislative and other measures as may be necessary
to establish as criminal offences under domestic law the infringement
of intellectual property rights;
8.4. adopt dissuasive measures towards operators of Internet-based
social networks and platforms with user-generated content which
benefit financially from illegal content posted on their sites;
8.5. promote procedures to lodge complaints online with law-enforcement
authorities as well as user hotlines by Internet service providers
to report violations of intellectual property rights on their services;
8.6. devise online dispute resolution procedures for online
violations of intellectual property rights, in accordance with Assembly Resolution 2081 (2015) on
access to justice and the Internet: potential and challenges;
8.7. reinforce in an open and transparent manner their multilateral
work on international co-operation in the field of intellectual
property rights;
8.8. ensure that Article 1 of the Protocol to the European
Convention on Human Rights is respected in law and in practice when
negotiating and implementing international treaties affecting intellectual property
rights, including free-trade agreements such as the Transatlantic
Trade and Investment Partnership (TTIP);
8.9. ensure that the protection of trade secrets, for example
under Article 39 of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS Agreement), does not unduly limit the public’s
right to access information under Article 10 of the European Convention
on Human Rights.
9. The Assembly calls on authors of creative works, rights holders,
collective rights agencies and licensing agencies, as well as on
Internet service providers, including social networks and platforms
with user-generated content, to use technical facilities for the
identification of intellectual property rights online, such as digital
rights management technologies for providing necessary information
to users and preventing unauthorised action on their part. Social
networks and platforms with user-generated content should empower
their users in this respect by providing such identification automatically
by default. The Assembly also calls on them to adhere to the self-regulatory
“Principles for User-Generated Content Services” established in
2007 to combat illegal user-generated content.