An amendment planted by the French film industry remains firmly at the centre of the Telecoms Package.
I occasionally get asked if copyright is still in the Telecoms Package, and now that we have the Council's Common Position, and the Second Reading has officially begun, it is worth reviewing the case. Recent legal developments in Member States, such as the Irish music industry v Eircom case in Ireland, also help to shed light on the issues.
The answer is that copyright is still there. Some of the provisions have been weakened, and the Package - as in the Council's Common Position of 9 February - no longer contains the onerous "lawful content" provision that risked making ISPs liable for Internet content. The issue now is how much weaker the provisions are, and what they would or would not permit.
To be clear, the Telecoms Package copyright amendments do not directly mandate graduated response/3-strikes. The copyright amendments have the effect of putting in place the legal foundation stones for 3-strikes. They were intended to get around certain provisions in EU law, which prevent ISPs from accepting liability for content and copyright infringement, and which also prevented them from divulging information about their subscribers to third parties. They are inter-linked, and it is necessary to interpret them as a linked series rather than individually - as explained in a report by the European Data Protection Supervisor .
The central amendment calling for ISPs to "cooperate" with rights-holders, that was drafted by the French film industrycollecting society SACD (Société des Auteurs et Compositeurs Dramatiques) remains in the Package. This is Article 33.3 [formerly Article 33(2a) (Harbour report).] It was also Article 8.4(g) of the Framework directive, although the Common Position has removed it.
Article 33.3 of the Common Position is the pivot for copyright, which establishes a legal principle that ISPs may be asked to "cooperate" in some way with rights-holders (unless another meaning can be suggested for "the sectors interested in the promotion of lawful content"). The wording of this article has been altered to make the provision optional for member states. Some interpretations suggest that it doesn't mean much more than a requirement to send information messages to users - the "persistent letter sending" according to the UK music industry.
Another interpretation though, can be drawn from the wider policy agenda of the rights-holder industries, and also by considering the meaning of the word ‘promote' in the context of the directive. Whilst the literal interpretation is limited to letter sending and encouragement, the real-life interpretation may be different.
The word ‘promote' has a stronger sense in other parts of the directive, where national regulators are asked to ‘promote' competition. MEP Ruth Hieronymi, said that this amendment was inserted by her and others, in order to "embed Olivennes-style" measures (graduated response /3-strikes) into EU law.
We should also take account of recent legal developments in the Member States, where rights-holders are going to court to get judgements against ISPs for measures which they also want under the "cooperation" banner. In this context, there is the Eircom case in Ireland , where an out of court settlement has put the ISP Eircom into the position where it has to sanction its own customers, potentially terminating their Internet subscriptions, if the Irish music industry alleges that they have infringed copyright. In other words, Eircom has been made to implement a back-door 3-strikes policy. We must ask if this is what is meant by "cooperation"?
In Denmark and Italy ISPs are being asked to block a specific file-sharing site, and in Belgium an ISP has had a content filtering order imposed - even though it has been proved unworkable, the order has not been finally lifted and the shadow of filtering continues to hang over it. In the UK, as I have previously reported, the BPI has asked the government to impose third-party liability on ISPs . The real meaning of the "cooperation" amendment may be more evident in light of these recent developments.
And finally, whatever one's normative position on the copyright issue, there is still a strong argument that this amendment does not belong in telecommunications law.
For background, the SACD's "cooperation" amendment. (see page 3 of their letter ) was (as I've also previously reported) originally proposed to go in Article 8.4 of the Framework directive:
"Cette disposition devrait être inscrite dans les tâches des autorités réglementaires nationales (chapitre III de la directive « cadre »), à l'article 8 paragraphe 4 qui prévoit que « les autorités réglementaires nationales soutiennent les intérêts des citoyens de l'Union européenne, notamment :
Amendement 1 (Article 8.4 de la directive « Cadre ») :
Point h nouveau) : en s'assurant de la coopération des entreprises qui fournissent des réseaux et des services de communications électroniques avec les secteurs concernés pour la protection et la promotion des contenus licites sur les réseaux et services de communications électroniques."
This "cooperation" amendment was inserted into the Framework directive, Article 8.4 by:
It was transposed to the Universal services directive Article 33 on July 7th via a compromise amendment from the IMCO committee into the Harbour report.
Article 33(3) [formerly Article 33.2(a)] remains in the Universal Services directive, in all three versions of the text - Council Common Position, Parliament and Commission.
"3. Without prejudice to national rules in conformity with Community law
promoting cultural and media policy objectives, such as cultural and linguistic
diversity and media pluralism, national regulatory authorities and other
relevant authorities may promote cooperation between undertakings providing
electronic communications networks and/or services and sectors interested in
the promotion of lawful content in electronic communication networks and
services. That cooperation may also include coordination of the public interest
information to be provided pursuant to Article 21(4)(a) and Article 20(1).";