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stichting Brein

Enforcement of copyright and neighbouring rights against piracy for the benefit of the collective of authors, performing artists, producers, publishers, broadcasters and distributors of music, audiovisual works, interactive software, images and literary works.

Lobbying Activity

Response to Fighting against online piracy of live content

9 Feb 2023

My feedback is contained in the pdf document that I attach, the language is Dutch, it responds to the questions posed in the EC consultation. The BREIN foundation is a non-profit organisation that, independent from the government and law enforcement authorities, handles the collective civil law protection of copyright and neighbouring rights for makers, performing artists and the creative media industry such as producers, publishers, broadcasters, distributors and online platforms. Adherents to BREIN are around thirty branch and collective management organisations and their members, together several thousands of companies and tens of thousands of creators of inter alia music, films, series, literature, visual arts and images. One of BREIN's main areas of focus has been illegal IPTV which, in addition to unauthorised streaming of films, series, television and radio broadcasts includes unauthorised streaming of live sport events.
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Response to Measures to further improve the effectiveness of the fight against illegal content online

30 Mar 2018

The Dutch BREIN foundation provides collective civil law enforcement against large scale Intellectual Property fraud, representing tens of thousands of authors and performing artists as well as thousands of producers, publishers and distributors of (e-)books, films, games, pictures, music and (television) series. BREIN welcomes the opportunity to respond to the Commission’s Inception Impact Assessment. This response is not exhaustive but aims to emphasize some of the major issues. Civil actions by Stichting BREIN have i.a. led to two ground breaking decisions by the Court of Justice of the European Union* that have bolstered authors’ and neighbouring rights (copyright) by a shift to a functional interpretation of the making available right (communication to the public) instead of the technical interpretation. The technical interpretation is favoured by platforms because it allows them to use technology to circumvent copyright and erode the value of creative content to a free source for ad-based revenue for pirate sites (i.e. sites infringing or facilitating infringement of copyrighted content as their business model). The functional interpretation looks at who in practice is providing access to content irrespective of where that content is stored and along which technical connections it reaches the public. As such more parties than one can be liable for communicating to the public. The case law resulting from BREIN’s enforcement actions support the Commission’s Communication on Tackling Illegal Content Online whereby all relevant intermediaries are accountable to take responsibility by ceasing to provide services to infringing websites and platforms by taking effective measures to proactively filter out infringing content. Platforms/websites should ‘close the faucet’ by taking proactive measures against the availability of illegal content. Cost effective solutions exist to do so on the basis of content recognition, infohash or word filtering. Notice & Take Down by right holders is not effective against structural infringement but can serve as a safety measure ‘to mop up’ any leakage that will inevitably slip through. Many platforms/websites infringing copyright or facilitating such infringement, only have an NTD policy processing too few notices too slow, in fact creating a situation where infringing copyrighted content is accessible on their service at any given time. Not only should take down capacity be able to outpace the uploads of infringing content, additional measures such as stay down, preventing re-uploading, are required as well as barring repeat infringers, verification of contact details and closing down infringement inducing indices. BREIN agrees that taking preventive measures should not result in the loss of liability exemptions for neutral ISPs. To the contrary, it is the flip side for such exemption that neutral platforms are accountable to assist in curtailing infringement lest the absence of liability becomes an excuse to reap commercial benefits from the unrestrained availability of unauthorised copyright protected content.** Last but not least, the ability to conduct business anonymously forms a major obstacle to fair trade online. Too often enforcement is frustrated because of absent or invalid contact details for infringing businesses. BREIN believes hosting providers should be held to list valid contact details as threshold to benefit from the liability exemption and intermediaries should refrain from providing services to anonymous actors. As these services concern multimillion euro’s worth of infringements, they, like other professionals under the Money Laundering directives***, should know who they are doing business with. See: *CJEU C-527/15 (Filmspeler) 26 April 2017 and CJEU C-610/15 (The Pirate Bay) 14 June 2017 **Opinion AG Szpunar in C-610/15 par 82 and 83 ***Directive 2015/849 and Regulation 648/2012
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