The European Commission is secretly talking with industry on Europe-wide 3-strikes measures. In what would appear to be British-inspired intiative, it wants to broker agreements between broadband providers and rights-holders, threatening EU legislation if they do not co-operate.

A meeting was held on 6 July, attended by rights-holders, trade unions, and Internet providers. The Commission's agenda was to start of series of talks to set up 'voluntary agreeements' for dealing on online copyright protection of 'creative content' which is defined as 'books, films and music'. 'Sanctions and remedies' were discussed, as well as

'legal alternatives to piracy'. The Commission is threatening to bring in a new European law which would bring in copyright enforcement measures against Internet downloading in all Member States, if no agreement is reached.

Sanctions and remedies is legalese for how they will punish users or prevent further downloading of copyrighted material. It is foolish to suggest it means anything else than some kind of 3-strikes measures, or the use of 'technical measures' as in the Digital Britain proposals, where protocol and website blocking as well as throttling of peer-to-peer connections are all on the table.

Voluntary agreements is code for private administration of justice by ISPs on behalf of rights-holders. Those sanctions and remedies will be privately administered, without a court, without any checks on the rights-holders allegations, and without redress for the users. It will enable deep packet inspection to be used to covertly sanction, without any oversight by a regulator.

The news emerged via an article in European Voice , a subscription-based news website for the EU staff, which reported on a meeting held in July

What is really concerning is that the Commission is pushing an approach that is illegal under its own laws, in a manner that escapes public debate.

The Commission is Guardian of the Treaties and that includes being guardian of the European Convention on Human Rights, and the right to freedom of speech (Article 6 of the TEU). The Commission is well aware of the implications of Internet filtering for freedom of speech, as expressed recently by Commissioner Redin's spokesman, Martin Selmayr in the context of Chinese Internet censorship.

Voluntary agreements are in breach of the E-commerce directive, which requires broadband providers to be 'mere conduits'- that is, they carry people's communication, but they have no legal responsibility for it and they are not permitted to look into it. This is right and proper in a democratic society.

DG Internal Market is driving the initiative, but it is not clear which unit in the DG is responsible, or the name of the person driving it. The copyright unit D1 is headed by Tilman Leuder, a Dutch competition lawyer. The enforcement unit D3 is headed by economist Alvidas Stancickas and has a brief to "contribute to the fight against counterfeiting and piracy by a mixture of regulatory and non- regulatory measures at a European level.".

In a parallel move, DG Information Society has announced that it wants to finally do something to tackle the collecting societies' stranglehold on the copyright licencing process. However, reading it carefully, the initiative may only deal with broadcasting, and is a cover for a review of the 1993 directive on cable and satellite broadcasting.

The two moves look rather like a continuation of the turf war between the two DGs, as they fight for control of the copyright dossier under the new Commission. The Commission is due to be re-appointed in the autumn, and the various parts of the Commission are now setting out their stalls for what they plan to do in the next five years.

However, the new Commissioner of DG Internal Market - as yet to be appointed - should be wary of being pushed by rights-holder industries into 3-strikes moves. That is, if they care about democracy.

The European Voice article said:

" The Commission's invitation said that "European-wide

voluntary agreements... would seem to be in the

common interest of all stakeholders since currently the

development of new business models on the internet is

hampered by the volume of illegal downloading".

It added that "while future legislation should not be

excluded at European level", voluntary agreements are

"more likely to result in balanced and proportional

solutions".

The meeting discussed gathering evidence of illegal

downloading, the development of legal alternatives to

piracy, deterrents or sanctions, and educating internet

users"

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) European Commission secret move on 3-strikes , http://www.iptegrity.com 1 August 2009.

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