Limitations and restrictions are not the same thing. They pave the way for a kind of Internet on demand.
This article was sent in to iptegrity.com by Celia Blanco, a law graduate from Spain, and I'm publishing it because I think it provides some helpful insights into the Telecoms Package. It analyses the Telecoms Package, European Parliament revisions of 23 February (revised Harbour and Trautmann reports). In particular, it considers the differentiation between limitations and restrictons, and a possible interpretation of ‘internet on demand', which is not so far fetched when one understands what traffic management systems are capable of.
by Celia Blanco
Limitations=management policies. Limitations affect everyone from the beginning, a priori, and Providers must/may inform about them. (This is transparency.) Providers may offer to users different packages with different Internets (if you pay a certain amount, you can access the kind of content, services and applications, you choose what you want)
Reading Amendment 45 of the Trautmann report (Art. 8 a. 2002/21) together with Recital 22 (Amendment 5 of the Harbour report), there is an interpretation that users should be able to choose in a competitive market with transparent offerings.It does not say that each provider has to ensure that end users are able to access and distribute any content and to use any applications and services of their choice. Instead, it can be interpreted such that it is the market which has to provide transparent offerings to allow the users to choose what content services and applicationsthey want to access, andtherefore, providers have to inform users of the limitations in the services they offer.
Restrictions= sanctions. A fortiori. Restrictions affect a specific individual and can only be imposed following a
judicial review (Art. 8.4 (fb) 2002/21, Amendment 46 of the Trautmann report) when the users' fundamental rights to information (content) are affected.
*Cooperation between Access providers and sectors interested in the promotion of lawful content = Internet on demand. A 3-strikes system will be not allowed, since that would be a restriction (Amendment 46 Trautmann report) but access providers can limit (now legally) the content, services and applications that users can access. This will benefit access providers which can diversify their offers
and sectors interested in the promotion of lawful content which may cooperate to design those offers. That will result in the promotion of lawful content to the detriment of content that is not lawful (but neither is it unlawful).
Webcasting is the new business for copyright holders and broadcasters (who may be the same person), but in the current Internet there are too many competitors. An Internet on demand where access providers collaborate and give access to lawful content it is beneficial for both (access and lawful content providers). Main access providers would offer a premium service where users can access the content that copyright holders would provide through the services and applications they decide.
Also if the offers are differentiated (for example, access to films, webcasting, music) content providers (collecting societies) may tax users with a levy for the use of the networks (as they have already tried, at least in Spain) and access providers may cooperate with them collecting it.
Access providers will be liable for the content they give access to, and since they will be selecting the information (Art 12 Ecommerce Directive), they won't be mere conduits any more. Therefore, they will want to collaborate with content providers to ensure they only give access to lawful content, service and applications.
It is not sufficient to delete the reference to lawful (content applications and services). The Directive should only speak about information and data. Limitations on access to information and data (which is what they really are) are restrictions to the fundamental right to send and receive information, and should be prohibited.
Celia Blanco studied Law in Santiago de Compostela. She holds a Masters Degree on Telecommunications and IT Law from Carlos III University in Madrid. She is currently collaborating with the P2P Foundation.
For the full story of the Telecoms Package, see my book The Copyright Enforcement Enigma: Internet politics and the Telecoms Package