The European Commission's Digital Agenda, revealed on Wednesday by the Commissioner Neelie Kroes, has all the hallmarks of a cat on a hot tin roof. She is in the uncomfortable position of having to play off the aggressive bullying of the copyright industries against the arrogant mendacity of the telcos.
The willowy Mrs Kroes and her dysfunctional DG, have chosen to prioritise the explosive issue of copyright. At the same time, she fails to grasp Internet users rights, and net neutrality has been dropped from the list of formal action points.
The Digital Agenda is set out as a Communication to the Council and the Parliament. This is a policy document which explains forthcoming policy initiatives planned by the Commission. It includes new Directives, as well as reviews of existing policies.
Mrs Kroes' flagship legislative proposal within the Digital Agenda is a Framework directive on collective rights management (pan-European copyright), and a directive on
orphan works. Both are scheduled for this year.
These moves will be very positive for the Commission if Mrs Kroes can make it happen - and it is a big 'if'. A functioning EU law on collective rights management is an essential prerequisite for an online content marketplace. Without it, services selling online content struggle to get the licences they need, and the cost of doing business in content is too high for most start-up companies. The issue will be whether the dysfunctional Commission can be strong enough to overcome rights-holder opposition to such a directive, and to make it work for the service providers.
A review of the Ecommerce directive is set down for this year. The e-commerce directive was previously closed to review and this move to open it up could prove explosive. The copyright industries are sitting there with their legal gunpowder ready, waiting to rip in to the mere conduit provision.
It precedes an equally dynamite-laden review of the IPR Enforcement Directive, which is on the plan for 2012.
As copyright policies technically belong with DG Internal Market, under her French, Sarkozy-ite colleague, Michel Barnier, it is not clear which is the lead DG on these reviews. Has there been a deal that DG Information Society takes the multi-territory rights Directive, and DG Market the other two?
ACTA (Anti-counterfeiting Trade Agreement), which seeks to impose draconian copyright legislation internationally, is not mentioned by name. But it does look very likely that this action point is referring to ACTA: "Seek a mandate to update international agreements in line with technological progress or, where appropriate, propose new instruments"?
Commissioner Kroes tries to slide out of any positive commitment to net neutrality, as per this muddled piece of Commission-speak: "whether additional guideance is required to secure basic objectives of freedom of expression, transparency, investment in efficient and open networks, fair competition and openness to innovative business models." She intends to consult on these issues - apparently. The Consultation is described in the text but is not on the action list, so its status is not clear. Is she hoping to sneak it out again when no-one is looking?
And it is unclear whether this Consultation will take full account of the request placed on 4 November last year, by the European Parliament, for the Commission to work specifically on net neutrality by 2011.
Under the guise of ‘Trust', Commissioner Kroes muddles up the issue of child pornography - which is criminal matter and should be dealt with by the police - with ‘protecting children' from viewing adult pornography - which should be dealt with by parents.
Furthermore, there is a suggestion here that the Commission may try to use network security as a trojan horse for ‘protectiong children' Internet blocking measures.
Finally, Mrs Kroes wants to issue a Code of Online Rights by 2012 - but her code only addresses consumers, not citizens. Such a ‘code' , which will have an uncertain legal status, can only address elements such as the contracts, and not the fundamental rights of citizens, which are guaranteed under the EU Treaties.
She confuses the fundamental right to freedom of expression with a minimum quality of service, by putting them in the same sentence. Any such minimum, is a term of service in the commercial contract between the subscriber and the network operator. This is a reference to the Telecoms Package and the flawed contracts provisions in the Harbour report. She evidently has no clue what fundamental rights mean in this context, in spite of the extensive debate on the Telecoms Package which her DG was involved in last year.
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 (2010) Neelie Kroes' Digital Agenda: a cat on a hot tin roof http://www.iptegrity.com 17 May 2010