According to reports from a French embassy seminar in Berlin, German MEP Ruth Hieronymi said that the key "co-operation" amendment to the Universal Access directive (Harbour report) in the Telecoms Package DOES provide the basis for graduated response / 3-strikes in EU law.
Frau Hieronymi was referring to Amendment 112 of the Harbour report (Article 33 (2a) which specifies that regulators shall promote "co-operation" between right-holders and Internet Service Provides. She stessed several times that the concept of "co-operation" is clearly anchored in the Harbour report. "In dieser Rechtlinie, is das Prinzip der Ko-operation in eine Reihe von Antragen...abgestimmt" (In this directive, the principle of co-operation is agreed in a raft of amendments').
And she argued that the Telecoms Package provides the basis for Olivennes measures in European law.
'Ich bin der Feste Uberzeugung, dass die Rechtsgrundlagen gegeben ist, ein Modell wie Olivennes sehr wohl mit Europaeischen recht kompatible zugestalt', she said. (Translation: I am absolutely convinced, that the legal framework is there, to fashion a model like Olivennes that is compatible with European law).
She went on to link it directly to the "co-operation" concept:
"auf diesen Grundlage dann, die Ko-operation des Sektors fuer die Erarbeitung solche wege, solche Ko-operationsmodelle, gestarkt wird..." (Translaterion: on this framework then, the co-operation of the sectors, for working out these paths, these co-operation models, will be strengthened..."
Her comments were given at a seminar organised by the French Embassy in Berlin. The invitation was headed: " Einladung zur Konferenz über die Entwicklung kreativer Online-Inhalte" (Invitation to a conference on the development of Creative content online) and the conference topic was 'Kann die Olivennes-Vereinbarung die Weichen für die digitale Zukunft stellen?' (Can the Olivennes agreement set the course for the digital future?)
Frau Hieronymi's comments are interesting, because this is the first public admission that the attempt to insert graduated response and copyright enforcment measures into the Harbour report was deliberate. It casts serious doubt overclaims by certain of her colleagues, notably Malcolm Harbour, the rapporteur for the directive, that there was nothing about copyright enforcement or graduated response in his report.
And it must make Member State governments reconsider their position on the Directive in the Council of Ministers. Because there is now no doubt that a vote for the directive as it currently stands, is a vote for graduated response / 3-strikes measures.
Frau Hieronymi claimed personal responsibility for the other co-operation amendment - Amendment 132 in the Framework directive - withdrawn at the last minute - saying it was intended to counteract the effect of the Bono Amendment 138.
She also commented correctly that Amendment 138 in the Trautmann report, which opposes graduated response, is in direct conflict with Amendment 112 and the other pro-Olivennes measures which she says are anchored in the Harbour report.
And she divulged what actually happened in the Parliament on 24th September - apparently, the Socialist group threatened to oppose the entire De Castillio report on a Europe-wide regulator, unless the Parliament agreed to pass Trautmann 138.
The seminar appears to have been a French Presidency charm offensive to get the German government to support graduated response measures. Germany, along with the UK, currently has reserves on certain key measures in the Universal Access directive.
You can listen to Frau Hieronymi's speech on an mp3 recording from Netzpolitik .
Netzpolitik also gives a full account of the seminar - click here. The account of Vivendi lobbyist Sylvie Forbin explaining file-sharing is quite amusing. (Only in German).