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A Copyright Masquerade: how corporate lobbying threatens online freedoms

Part 1 Internet, entertainment & copyright;  Part 2  The American influence: ACTA & Ley Sinde (Spain);  Part 3 The Politics of music: Digital Economy Act (Britain)

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Will  Internet users be cut off in Europe? Now the Lisbon Treaty is ratified, will the European Parliament flex its muscle to defend citizens fundamental rights? 

And will Stavros Lambrinidis deliver a defence of the European Parliament's position?  He's  the Greek MEP and lawyer who said he wanted to protect the fundamental right to Internet access without interference, and to whom Internet users now turn.  

 

D-Day  refers to the Dinner Date which regular iptegrity readers will know about.

 

***FIRST NEWS OF CONCILIATION COMMITTEE MEETING IS OUT -  see Christian Engstrom's blog ***

 

Today the European Parliament meets with the Council as the full Telecoms Package Conciliation Committee.  On the table is one topic - whether  or not 3-strikes  measures to enforce copyright on the Internet (French or British style) is acceptable in Europe.

 

These measures are primarily intended to hit peer-topeer filesharers, but the EU legislation could affect all

users depending on the implementation method and the exact nature of the  political or commercial objectives.It follows the secret adoption of two out of the three directives in the Telecoms Package - the Harbour report, which  will enable Internet restrictions, and the Del Castillo report creating a powerless regulator (see my previous article).

 

The Council, together with the puppet chairman of the European Parliament delegation, Alejo Vidal-Quadras, will try to focus the discusion on the detail of an opaque and obscure text to replace the controversial Amendment 138. But there's no doubt what it means. 3-strikes - or not - is permitted across  all of Europe.

 

The Lisbon Treaty ratification gives more power to the European Parliament. This is an ideal chance for the European Parliament to demonstrate that it will not be driven by the Council and that  it is a democratic and independent institution, capable of scrutinising legislation and holding out for a better deal for EU citizens.

 

Conversely, if the Parliament gives in to the Council on this issue, it sets the ground rules for a weak and toothless institution, which is incapable and unworthy of power.

 

The MEP who is expected to lead the Parliament's defence is Stavros Lambrinidis. He produced a report, carried by a majority vote last March. The Lambrinidis report stated :

Member States must ensure that freedom of expression is not subject to arbitrary restrictions from the public and/or private sphere and to avoid all legislative or administrative measures that could have a "chilling effect" on all aspects of freedom of speech.

Now is his chance to demonstrate that his report was more than just nice words.

He will be supported by the Green MEP Philippe Lamberts, and Pirate Party/Green Group Christian Engstrom, as well as the Left party's Eva Britt-Svensson. Support should also be expected from fellow Socialists Patrizia Toia, and Marita Ulvskoog.

 

What options does Mr Lambrinidis  have?

1 Call on the Council to be open about its motive, and to agree that the test for the text to replace Amendment 138  is the ‘Hadopi test'  Will it allow or block Hadopi-style administrative justice, 3-strikes and British-style technical measures?  Such clarification would enable a proper  policy debate between the two institutions.

2 Stand up for the wording that he himself proposed in the meeting of 20th October, as an absolute minimum requirement. The wording is not great, and ideally needs more work on it, but it does contain some language which effectively means  that 3-strikes,  Hadopi's and technical measures, are more difficult for governments to implement.

3 Challenge the Council's overall position, using Article 95 of the EU Treaty (internal market).  "National measures" restricting  users access to Internet services and applications, de facto mean breaking up a harmonised market that already exists for the Internet, and will create a dis-harmonisation. This would be in direct contravention to Article 95 of the Treaty. Article 95 is important because it is the legal basis for the Telecoms Package, and completion of the Single Market for telecommunications was the stated objective.

Note:  The text does not say restrictions, but this is the interpretation when the text is linked to Article 1.3, 20.1, 21.3 and 33.3 in the Universal Services Directive (Harbour report). These articles do permit restrictions on access to services and applications on the Internet, by governments and commercial operators (see my previous article). The text being argued over today will either seal in restrictions and 3-strikes; or it will offer some safeguards against such measures and express the Parliament's opposition to them. 

 

He should be cautious of any attempt by the Council or the Commission to re-introduce their so-called Declaration on Net Neutrality, which was in fact a mechanism for the Commission to monitor Internet restrictions as per the  abovementioned Harbour report. It could also prove a stealth tool for further restrictions. (See my previous article on this topic).

 

 He has the opportunity too, to rebutt the Council's objection to inclusion of  the Charter of Fundamental Rights in the text - the ratification of the Lisbon Treaty means this Charter will be law.

 

Mrs Trautmann, the rapporteur, has one last chance to salvage her shattered public reputation. In toeing the Council's line, she has betrayed her party in France, which opposed the Sarkozy regime's 3-strikes law, and failed in her duty as a Parliamentarian to stand up for EU citizens. We will see tonight whether If she maintains the Parliament's position which opposes 3-strikes and technical measures.

 

The European Commission will be represented by the Information Society Commissioner Viviane Reding. Will she stand up for the open Internet, which she claims to support, at the same time as she openly supports 3-strikes? Her position is untenable, and she must show tonight where she really stands. (Note my comments on Article 95 above, and the fragmentation that "national measures" will cause, and that Mrs Reding, as a Commissioner, is Guardian of the Treaties.)

 

The increasing attempts by the EU to wipe out the Amendment 138 dispute  and to put a false gloss onto the Telecoms Package, make the meeting tonight all the more sinister and interesting.

 

Citizens call on the European Parliament: 

La Quadrature du Net - France / EU   La Quadrature has  additional comments on the legal position and  the text .

Scambio Etico - Italy

Electronic Frontier Bulgaria  

 

 

Post script:

I tried to obtain an official position from the Council, and  put two questions to the Swedish Presidency, which is  the Council's  official spokesman. Having contacted them on Monday, I have not yet had an answer, which does not, in my opinion, bode well for EU transparency. I requested a response on  the reason for the Council's opposition to Amendment 138,  in respect of  the legal basis and the policy issue. I also asked why  the Harbour and Del Castillo reports were separated from the  Package and adopted? 

 

 

 This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009) It's D-Day  for 3-strikes in Europe, http://www.iptegrity.com 4 November 2009.

Iptegrity.com is the website of Dr Monica Horten,  policy writer and Visiting Fellow at the London School of Economics & Political Science. She is an independent expert on the Council of Europe Committee on Cross-border flow of Internet traffic and Internet freedom (MSI-INT). She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy. Iptegrity is read by lawyers, academics, policy-makers and citizens, and cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

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