A report to be voted this Wednesday in the European Parliament is trying to put the criminalisation of copyright onto the EU policy agenda. The so-called Gallo report wants to revive a mothballed directive on criminal measures for IPR enforcement and to involve Europol in dealing with online infringement cases. In parallel, it places a strong call for graduated response measures which stands to contradict the Parliament's previously voted position in the Telecoms Package.
So why do the Liberal (ALDE) group maintain support for it?
The Gallo report on Enforcement of Intellectual Property Rights in the Internal Market does what it says in its title. It concerns European policy for copyright and other IP rights, and it has a particular interest in how these rights can be enforced on the Internet. It takes a hard line approach supporting graduated response, increased liability for broadband providers and places a strong call for criminal measures. It will be
voted in the European Parliament this Wednesday.
The Gallo report is a non-legislative report which aims to instruct the European Commission as to what line of policy it should follow. It is therefore an instruction in respect of future EU policy, and depending on how and when - and if - it is followed up, it may influence in the direction that EU policy will take on IP enforcement. Since it takes such a strong interest in online enforcement, it could, if pursued, influence the future direction of the European Internet too.
The report is written by the French MEP Marielle Gallo, who is from the French party led by President Sarkozy. It is unsurprising therefore, that it follows a hard-line agenda promoted by the copyright industries.
Mme Gallo says that there are gaps in the law in for addressing online IPR infringements. In this respect, she refers
to criminal measures. She wants the EU to bring back a directive on criminal measures for IP enforcement which was previously proposed but which was never passed, and which was ultimately stalled in the Council of Ministers.
The way her report is written, it is not clear whether she thinks that this directive should be applied to peer-to-peer file-sharing by individuals, and it is possible that this ambiguity is deliberate.
However, she does include online infringement in the same clause as she calls for Europol, national authorities and the private sector to co-operate.
In a second strand to the report, Madame Gallo also calls for measures to make broadband providers act as copyright enforcers. Without mentioning the words ‘3-strikes' or ‘graduated response', she describes measures that mean the same thing.
This is reflected in the language about ‘dialogue with all interested stakeholders' which means that ISPs should work with with rights-holders to enforce copyright. This is a precursor to 3-strikes measures. Madame Gallo also says that ‘failing this' the Commission should legislate. UK readers will note that this was the kind of language we saw from BIS before the Digital Economy Act was drafted.
Madame Gallo's call for such legislation contradicts Article 1.3a of the Telecoms Package, which the European Parliament worked so hard to put in place. It would be a betrayal of citizens if the Parliament were to now attempt to renege on that agreement.
Concern in the Parliament about the Gallo report is reflected in an alternative resolution from the Socialist and Green groups. This resolution attempts to create a fairer balance in the Gallo report between copyright and the rights of Internet users.
Oddly, the Liberal (ALDE) group has withdrawn from the alternative resolution and come up with one of its own, which really only supports Mme Gallo and the copyright lobbyists.
It is difficult to comprehend, because only last year, the ALDE group led the Parliament to vote against such draconian measures, and in favour of Internet users rights in the Telecoms Package.
La Quadrature du Net have an analysis which compares the different versions of the Gallo report . You can see the original report by Marielle Gallo and the Liberal (ALDE) alternative resolution side by side with the alternative resolution from the Socialist (S&D) group and the Green Group.
La Quadrature du Net is calling on MEPs to vote for the S&D /Green alternative resolution.
Key provisions from the European Parliament's Gallo report
Criminal measures for copyright enforcement:
having regard to its resolution of 25 April 2007 on the amended proposal for a directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights
15. whereas, with the exception of legislation on penalties under the criminal law, a Community legal framework already exists with regard to the phenomenon of counterfeiting and piracy of physical goods, but whereas lacunae persist with regard to online IPR infringements,
1. Welcomes the communication of 11 September 2009 from the Commission concerning additional non-legislative measures; regrets however that the communication does not deal with the matter of completing the legislative framework by introducing a set of measures to combat intellectual property right infringements in an effective manner;
3. Calls on the Commission to urgently present, by the end of 2010, a comprehensive IPR strategy addressing all aspects of IPRs, including their enforcement as well as their promotion, in particular the role of copyright as an enabler and not an obstacle, helping creators earn a living and disseminating their works;
13. Does not share the Commission's view that the principal body of laws with respect to IPR enforcement is already in place; points out in this respect that negotiations on the ditrective on criminal sanctions have not been successfully concluded;
Measures leading to graduated response /3-strikes
25. Agrees with the Commission that additional non-legislative measures such as discussions on possible improvements to the digital market in Europe through voluntary harmonisation of procedures and standards amongst stakeholders can be useful to improve the application of IPRs, particularly measures arising from in-depth dialogue among stakeholders;
26. Stresses that the enormous growth of unauthorised file sharing of copyrighted works and recorded performances is an increasing problem for the European economy in terms of job opportunities and revenues for the industry as well as for government
32. Stresses that all parties concerned, including Internet service providers, must join in the dialogue with stakeholders in order to find appropriate solutions; calls on the Commission, failing this, to submit a legislative proposal or to amend existing legislation, particularly Directive 2004/48/EC, so as to upgrade the Community legal framework in this field on the basis of national experiences;
12. whereas the unauthorised uploading of copyrighted material to the Internet is a clear infringement of intellectual property rights and is prohibited by the World Intellectual Property Organisation (WIPO) treaties on copyright (WCT) and performances and phonograms (WPPT), to which the European Union is a contracting party,
[NB - this paragraph would seem to pre-empt any possible court ruling on IPR infringements and should be questioned in that light. ]
47. Stresses the importance of fighting organised crime in the area of IPRs, in particular counterfeiting and online IPR infringement; points out in this context the need for appropriate EU legislation on proportional and fair sanctions and supports close strategic and operational cooperation between all the interested parties within the EU, in particular Europol, national authorities and the private sector, as well as with non-EU states and international organisations;
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) European Parliament to vote on criminalising copyright infringement http://www.iptegrity.com 21 September 2010