Today, online piracy is a particular challenge in Georgia, harming the representatives of the creative industries sector and the country’s whole economy. As such, it has become necessary to amend the relevant legal framework regarding liability of the internet service providers (ISPs) in order to introduce a new mechanism for intellectual property rights (IPRs) enforcement in the digital environment.
Piracy in Georgia is common across many sectors, including the distribution of film and TV series, music, video games, and software. The high availability of pirated content negatively affects numerous stakeholders in the private sector. Specifically, it discourages domestic and foreign investments and restricts revenue generation for the producers of audiovisual content, and for the firms specializing in post-production and distribution activities. In addition, it damages Georgia’s reputation and hinders the local film industry’s opportunities to collaborate internationally. The problem is further aggravated by low awareness of consumers about intellectual property rights and piracy.
Dani Bacsa, Motion Picture Association (MPA) Vice President for Global Content Protection – Europe, the Middle East, and Africa noted that the continued evolution of piracy, and the threats criminals pose to the industry are very real. “We have no illusions about the scope and the severity of the problem. Piracy is a digital global industry. The people behind many of these operations are real-life criminals.”
He emphasized that content is vital to the continued success of the industry. The movie industry develops new innovative and consumer-friendly legitimate platforms which make sure that the creators get compensated for their hard work and that audiences can enjoy their favourite films and TV series in a safe and secure online environment.
Bacsa noted that he is aware that every effort is being made in Georgia, adding, “We need to reinforce the legal copyright regime in Georgia and the copyright intellectual property laws guide,so as to protect the creators andtheir business partnersand allowing them to seek just compensation for their hard work and creativity, and to stimulate innovation. We recognize the work already being done by the Intellectual Property Center for Georgia and for their ongoing efforts. But clearly more needs to be done.”
As a result of the USAID Economic Security Program’s Public-Private Dialogue (PPD) Initiative for Creative Industries, and consistent with the leading international practices, the USAID Economic Security and USAID Economic Governance Programs and National Intellectual Property Center of Georgia Sakpatenti initiated a combination of policy and non-regulatory interventions to ensure effective IPR enforcement in the digital environment. The proposed targeted intervention provides exemptions from liability for the ISPs and introduces the notice- and take-down mechanism, restricting access to pirated content when notified by rightsholders.
Mark McCord, the USAID Economic Security Program Chief of Party, highlights USAID’s commitment to enhancing the competitiveness of Georgia’s creative industries sector. ‘’The Program believes Georgia’s value proposition in the creative industries sector is strong, and this is evidenced by its year-over-year growth in value chains such as film and television production and post-production, advertising, marketing, publishing, performing arts and digital media. The creative industries sector has spillover effect to other sectors as well, stimulating overall economic growth through a ‘ripple effect’ that increases Georgia’s overall value proposition.”
McCord continues by saying, “The film industry is becoming more and more global, as it is highly mobile and able to relocate production to whichever countries offer the best value proposition. For a country like Georgia, the creative industries sector provides a clear path to high-value employment and investment, both global and domestic. As such, government policies such as Intellectual Property Rights (IPR) protection must align with international standards to ensure a firm foundation for the sector’s growth. For this reason, USAID has taken a key position in supporting Sakpatenti’s efforts to enhance the sector’s business enabling environment by becoming a global example of IPR protection.”
Manana Pruidze, Deputy Chairperson of Sakpatenti, explains how these reforms will be implemented by the government.
“Protection of intellectual property at an appropriate level, and the fight against piracy,are among our main priorities,” she says. “Copyright is private property, therefore, its protection and the enforcement of rights are, of course, the prerogative of the rights owners. Yet, the role of the state, which determines the policy in the field of copyright protection, is certainly important, ensuring as it should the existence of a suitable legal framework and the provision of international standards for the effective enforcement of rights.
The draft contains the following elements: 1. The owner of rights sends a formal notice to the ISP about infringing material on its network; 2. The ISP is obligated to “take down” – delete or block access to – the infringing material promptly; 3. The user of the service may send a counter-notice alleging that the material is not infringing; 4. In case of a counter-notice, the ISP informs the owner of the right that, unless it initiates a legal procedure due to the infringement, the material will be restored; 5. In case of such a procedure, the ISP should be informed about the final decision promptly and either maintain the removal or restore the material; 6. The ISP is exempted from any liability if it acts in accordance with the rules of the system; 7. In contrast, owners of rights are liable for any misuse of the system.
Currently, ISPs are obliged to respond only to the requests of the Georgian National Communications Commission. The suggested model implies widening the scope of responsibility by including requests coming directly from the rightsholders. Such a policy development would equip rightsholders with an additional tool to pursue their interests via civil lawsuit, and to recover damages where their rights have been infringed.
Sakpatenti and USAID also intend to define clearly the conditions of liability exemption for ISPs in case of IPR infringements online. Through the Economic Security Program’s multi-stakeholder PPD sessions and the active involvement of an international IPR consultant in the process, Sakpatenti is developing the necessary primary and secondary legislation on ISP liability, including detailed recommendations about the enforcement processes and ‘notice and take down’ procedures.
Pruidze points out that the legislative changes developed by Sakpatent involve the creation of an effective civil-legal mechanism for the enforcement of rights in the Internet space, which will directly give the owners of copyright and related rights the opportunity to react in a short period of time and prevent the violation of their rights in the digital environment themselves.
Based on this, the negative impact that piracy has on the creative industry and the country’s economy will be reduced.
“The protection of intellectual property, including copyright and related rights at the appropriate level, plays an important role in stimulating and promoting the creative activity of authors and, in general, the cultural and economic development of the state. Therefore, it is important to create an environment in the country in which creativity and innovation flourish. The interests of the people who create new works must be balanced withgeneral interest, so that public access to these works is as high as possible,” Pruidze says.
She goes on to emphasize that copyright protection is particularly important for creative industries, as the creativity, skills and talent of creators of literary and artistic works are their most important tools in terms of prosperity and job creation.
As John Phelan, Director General of the International Confederation of Music Publishers (ICMP) highlights: “Copyright is the ink on every single music creator and music company’s paycheck. For ICMP’s members today, that applies to almost 100 million musical works of 5,000 genres. Copyright is the foundation stone and source of future sustainability for an entire industry, whether music is experienced via streaming, TV, radio, gaming, live, NFTs, print, cinema or the growing metaverse.Today, the risks to copyright are as numerous as they are sophisticated, particularly online. Consequently, the crucial, common challenge for our sector, and legislators worldwide, is to ensure robust copyright protection and modern enforcement tools in law to defend these fundamental rights. If we achieve this, we secure growth and investment in the invaluable – music and culture.”
Manana Puridze explains how it is technically possible to regulate this in Georgia.
“The ‘notice and take down’ mechanism, proposed by draft law, has been implemented and tested for many years in the EU and US. In addition, as I mentioned, within the framework of cooperation with the USAID Economic Governance Program, we have invited EU experts who, in accordance with the existing international practice, will develop relevant guidelines, which will be discussed in detail and agreed upon with the internet service providers so that they do not create any kind of obstacle to the fulfillment of the requirements stipulated by said draft law.”
It is important for Georgia’s European perspective to protect copyright in the country, as the harmonization of the national intellectual property legislation with EU legislation was one of the main prerequisites for signing the Deep and Comprehensive Free Trade Area (DCFTA) agreement. The development of the field of intellectual property in Georgia is also one of the main components envisaged within the mentioned agreement.
Ioannis Kikkis, Intellectual Property Rights International Consultant, notes: “Georgia’s approach to fighting online piracy is aligned with the relevant EU directives and international best practices. The suggested ‘noticeandtakedown’ procedure is a new tool of paramount importance for both copyright holders and ISPs. It provides an additional tool for rightsholders – an alternative to the existing options of administrative and court actions. The ‘notice and take down’ procedures have been regulated in sufficient detail both in Europe (e.g., the Hungarian Copyright Law) and the US (e.g., Copyright Act of the United States) and have served as well-functioning means of fighting online piracy in practice. It is a soft approach, simple, and is not costly, defining appropriate deadlines and eliminating uncertainty. ISPs are not held liable if they act in accordance with the detailed norms. Finally, adequate protection is guaranteed against the misuse of the system by making rights owners liable for possible false notices.’’
On January 11, 2018, amendments to the Georgian Law “On Copyright and Neighboring Rights” entered into force, the preparation of which was related to the fulfillment of the obligations stipulated in the Association Agreement between Georgia and the European Union. .
“Today, it can be said that the legislation of Georgia in the field of copyright is mostly harmonized with the legislation of the European Union and international standards, however, as mentioned, the protection of copyright in the Internet space is a particular challenge.,” Pruidze notes. “This is why it is planned to develop new legislative changes that will directly regulate this issue and will further align our legislation and practice with EU legislation and international standards.”
To ensure broad public backing for the recommended changes, USAID supports the anti-piracy reform through an awareness-raising campaign across TV, online and social media, as well as by developing the Georgian legal streaming platforms. The broader availability of legal content was perceived as one of the key pre-conditions for the successful implementation of the anti-piracy policy, meaning the planned anti-piracy initiatives are focused not only on the introduction of new regulations, but also on achieving large-scale accessibility to legal content.