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Response from the European Publishers Council to the Article 29 Working Document on Data Protection issues related to Intellectual Property Rights

http://europa.eu.int/comm/internal_market/privacy/docs/wpdocs/2005/wp104_en.pdf

31st March 2005

Introduction to the European Publishers Council

The European Publishers Council (EPC) is a group of 29 Chairmen and Chief Executives of European media corporations actively involved in multimedia markets spanning newspaper, magazine, internet and on-line database publishing. Many members of the EPC also have interests in private commercial television and radio. A list of members is attached.

General comments

The EPC welcomes the opportunity to comment on this important area at this stage of your review. Investment in the creation and distribution of our content relies upon effective intellectual property rights protection to support our core business. As more and more content is traded online, IPR theft is increasingly common which means that laws establishing IPR protection must be backed up by strong deterrence against theft and effective enforcement regimes. This is essential to the future viability of our business.

Members of the EPC are of course also concerned with data protection legislation, in two main ways: Firstly in terms of the impact of data protection legislation on the freedom of expression, particularly with regard to the application of Article 9, which requires Member States to provide for derogations from sections of the directive "for journalistic purposes"; secondly, and equally importantly, in terms of our commercial activities, for example in the fields of marketing, subscription management and digital rights management.

We would like to point out that in broad terms, the two main areas that you have identified regarding online/internet traded content of a) trading and tracking legitimate use of our copyright protected content and b) fighting unauthorized use are largely similar to the way in which we have managed our businesses in the printed world. We would be concerned therefore to make sure that, just because our content is now often traded online, we should not in any way be hampered in our core business development by new, onerous data protection rules which in some way interfered with day to day copyright management.

Clearly there must always be a balance between legitimate business operations and an individual's right to privacy but we note that it already seems from your concluding paragraph that the Article 29 group feels that the individual user's privacy rights are being detrimentally affected by new technologies and the way in which content is traded online. As publishers, we do not agree with this conclusion and reject the notion that there is an increasing gap between the protection of individuals in the off-line and online worlds. The business of publishing news, entertainment, literature, comics and other similar content on a subscription basis, has required that close attention is paid to data protection matters. Publishers already comply with existing data protection laws and can see no justification for further restrictions on the way in which we protect and manage our copyright protected works.

Furthermore, as a general comment we would like to point out that, however well intentioned, laws on data protection have already spawned an over-complicated legal framework, which is difficult to keep up with, and that our preference is for no more regulations for the foreseeable future. We would support further discussion though on consolidating the various Directives and Regulations on data protection and privacy into a single directive dealing with data protection. The current situation of multiple sectoral provisions and sector-specific legislation has created distortions and inconsistencies in the performance of virtually identical business operations among industries.

In more detail

1. The EPC notes that EU IPR Directives already require that their implementation is carried through without prejudice to data protection principles enshrined in the Data Protection Directive adopted in 1995.

For example, Article 8.3 (c) of the Enforcement Directive recognises that justified and proportionate requests for information in the context of proceedings concerning an infringement of intellectual property should apply without prejudice to other statutory provisions which govern the protection of confidentiality of information sources or the processing of personal data.

Member States are in the process of implementing the most recent IPR directive on enforcement and we would be very concerned if recommendations from the working party with the objective of enhancing an individual's privacy rights resulted in restrictions to a full and effective implementation of the Enforcement Directive in all Member States. Copyright owners must be able to collect and provide reasonable evidence to support legitimate claims for infringement of their IPR.

2. The Working Party asks for "a development of technical tools offering privacy compliant properties".

We are concerned that the implications of this request would result in yet more requirements on publishers where no new rules are really necessary. We already take great care to respect our customers' privacy through the existing legislation regulating data protection matters both in traditional and electronic environments.

The existing directives on personal data (95/46/EC) and on privacy and electronic communications (2002/58/EC) cover data protection and have been implemented in the Member States. The practices arising from reasonable interpretation are currently being created. So far the experience of the publishing and information industry has been that due to its complexity, the legislation around privacy and electronic communication is exceptionally complicated and challenging to comply with both in offline and online world.

It should be noted that the already existing data protection principles cover the problematic areas described in the Commission Working Document. Moreover, practices for adequate information (Articles 10 and 11 of directive 95/46 and article 13 of directive 2002/58) and user consent (article 13 of directive 2002/58) are being developed in the Member States.

3. The Working Party suggests that "investigations performed by private actors such as copyright holders must be performed in a clear legal framework along the lines recognised by the Working Party".

The framework already exists, although some of the procedures which will become regularly relied upon for on line copyright infringements are still being assessed against the background of implementation of the Copyright and E-Commerce Directives and the new Enforcement Directive.

Publishers must ensure their legitimate right to process data about their own customers is in line with the Data Protection Principles, while at the same time using such information, legitimately held by them, in the context of, for example:

  1. Managing data regarding payments/subscriptions schedules, to ensure proper continued use of copyright services; and
  2. Enabling publishers to keep records of what type of content/service has or has not been authorised by them or an appointed service provider for an individual customer.

When an infringer is not a direct customer of a publisher, the publisher must work with relevant distribution partners and service providers in identifying copyright infringements in the online environment. Publishers will make applications to a relevant service provider (directly or through the Courts) to disclose relevant user addresses and other personal data deemed necessary to properly identify and pursue infringers.

4. The Working Party argues that people must be reminded of the data protection principles and the extent to which they apply in the framework of digital right management and the enforcement of copyright.

We agree with this principle so long as this is not at the expense of making use for proper enforcement purposes of lawfully collected and processed data. In this respect, Article 3 of the Enforcement Directive clearly recognises that: "Member States shall provide for the measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights covered by the Directive. Those measures, procedures and remedies shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays". We would ask that the Working Party also acknowledge that fair application of the Data Protection Principles should not contradict this principle.

Concluding remarks

Based on the experience of the publishing and information industry in general, we believe that so far there have been no problems in this area of balancing data protection principles with copyright management and enforcement.

Additional regulations could confuse and complicate the current situation by disturbing the development of practical solutions. Depending on the end result, revision of data protection legislation at this stage could even weaken the position of the publishing and information industry in the online environment as compared with traditional players. This would put European players at a significant competitive disadvantage by comparison to their peers in the United States and Asia. One should also bear in mind that anonymity may be one of the biggest threats to the development of internet and electronic commerce as there is already a trend to create barriers for the free use of the internet due to its anonymous nature as illegal players frequently abuse the protection of anonymity.

Traditional publishing is not very different from the online content production in terms of having to understand the needs of the users/customers. In order to produce attractive products and services, it has always been essential for the publishing industry to know its customers/users and how they enjoy its products/services. Magazines are a good example. The magazine market is becoming more and more segmented reflecting the fragmentation of population in European countries. In many Member States (e.g. Nordic countries and The Netherlands) magazines are subscribed to by customers, in a similar way to newspapers and pay-tv services. Publishers know who their subscribers are. The registers consist of very basic but very important information and these registers are regulated by data protection law. Online products and services should not be treated differently from traditional content products and services as often these two media are competing against one another and stricter regulations for online products would distort competition.

On the other hand, traditional and online products may be complementary so that they support one another and form a product family. Thus, exploitation of customer data in offline and online situations should be treated similarly.

As far as the music and film industries are concerned, this means that even though in general they have not had an equivalent direct relationship with their consumers in the same way in which publishers have been operating in the offline world, this is now possible in the online world. However this does not necessitate new rules as the existing data protection laws will be followed by music and film companies just as has been the case for publishers.

The minimum target should be to preserve the right to know one's customer in the online world as this is vital in all electronic commerce situations. In practice, this means that one should always make a clear distinction between "customer data" and other information about user history.

Instead of introducing new legislation or changes to the existing legislation, at this stage the most productive approach could be to focus on providing guidance and information for both the users/customers and the rights holders about the existing data protection legislation in all sectors of content production, whether in the field of news, general entertainment, comics, literature, music or film. The rights protecting users/customers are not necessarily widely known as this legislation is relatively new in the most Member States. Improving the level of awareness of not only users/customers but also of the often very fragmented information industry, would add more value to the competitiveness of the European information society in general than by introducing new complicated technical solutions and related regulations.

Final recommendation

Bearing in mind that

  1. publishers already comply with EU data protection principles, and
  2. publishers rely upon effective IPR protection and enforcement to support their core business activities

The EPC recommends that any further review of the existing data protection legislation should be postponed until there is enough experience of implementing the existing laws and of finding and executing practical solutions through best practice in the markets for online content publishing, music and film.

Thereafter, any review and eventual revision should only focus on clearly identified acute problems.

European Publishers Council
31st March 2005
www.epceurope.org

Members of the European Publishers Council

Chairman: Mr Francisco Pinto Balsemão, Chairman and CEO, Impresa, Portugal
Hon. President: Sir Frank Rogers, Telegraph Group Ltd., UK

Members:
Mr Kjell Aamot, CEO, Schibsted, Norway
Ms Sly Bailey, Chief Executive, Trinity Mirror plc, UK
Sir David Bell, Chairman, Financial Times Group, UK
Mr. Jose-Maria Bergareche, CEO, Vocento, Spain
Mr Carl-Johan Bonnier, Chairman, The Bonnier Group, Sweden
Mr Oscar Bronner, Publisher & Editor in Chief, Der Standard, Austria
Dr Hubert Burda, Chairman and CEO, Burda Media, Germany
Dr Carlo Caracciolo, President, Editoriale L'Espresso, Italy
Mr Juan Luis Cebrian, CEO, Groupo Prisa, Spain
Sir Crispin Davis, Chief Executive, Reed Elsevier,
Dr Matthias Doepfner, Chief Executive, Axel Springer Verlag, Germany
Mr Leslie Hinton, Executive Chairman, News International, UK
Dr Stefan von Holtzbrinck, Verlagsgruppe Georg von Holtzbrinck GmbH
Mr Tom Glocer, Chief Executive, Reuters plc
Mr Steffen Kragh, President and CEO, The Egmont Group, Denmark
Mr Bernd Kundrun, Chief Executive, Gruner + Jahr, Germany
Mr Christos Lambrakis, Chairman & Editor in Chief, Lambrakis Publishing Group, Greece
Mr Murdoch MacLennan, Chief Executive, Telegraph Group Ltd, UK
Mr Aldo Bisio, RCS, Italy
Mr Gavin O'Reilly, Chief Executive, Independent Newspapers PLC, Ireland
Ms Wanda Rapaczynski, CEO, Agora, Poland
Mr Jaakko Rauramo, Chairman and CEO, SanomaWSOY Corporation, Finland
Mr Gerald de Roquemaurel, Chairman and CEO, Hachette Filipacchi Medias, France
Mr Michael Ringier, President, Ringier, Switzerland
The Rt. Hon. The Viscount Rothermere, Chairman, Daily Mail and General Trust, UK
Mr A.J. Swartjes, CEO, De Telegraaf, Netherlands
Mr Antoine de Tarle, Chief Executive, Societe Ouest-France S.A., France
Mr Christian van Thillo, Chief Executive, De Persgroep, Belgium

Executive Director: Angela Mills Wade
Press Relations: Heidi Lambert