The Closing of the Net  "original and valuable"  Times Higher Education

Copyright is back in the Telecoms Package second reading as a users rights amendment is hijacked  for copyright enforcement by French MEP Jacques Toubon. Article 32a of the Universal Services directive, (formerly known as Amendment 166) has instead been  turned into an attack on the fundamental   rights of Internet users. 

 

Copyright enforcement will be permitted in a cynical legal twist on a Telecoms Package  amendment designed to protect users rights. Article 32a of the Universal Services directive (also known as Amendment 166) was designed to protect users' rights against copyright enforcement measures such as graduated response / 3-strikes . These measures impose sanctions such as cutting people off the Internet for downloading music or entertainment, and especially target peer-to-peer users.

The amendment was filed unsurprisingly by the French MEP Jacques Toubon , who has been working for 12 months to get copyright enforcement into the Telecoms Package - the cooperation amendment (Article 33.3) of the Universal Services directive is also his amendment, drafted by the French collecting  society SACD. A different version of Toubon's amendment has also been proposed by the Council as a"compromise". 

 

MEP Toubon's amendment twists the wording of this amendment, such that it appears to mean that users Internet access  can be

restricted, if it is to support copyright. In fact, I am wondering  it could be read that it  mandates member states to implement measures - restrictions - for copyright enforcement. Either way, I think it is referring to the use of graduated response and content filtering (via traffic management policies) for the purposes of enforcing copyright.

 

In this respect, it is a damaging amendment, which will, together with a number of other amendments in the Universal Services directive, not only attack the fundamental rights of Internet users, but will also damage the economy, especially in the current financial crisis. M. Toubon's persistent attempts to protect aging monolithic media empires, will ultimately result in financial harm for the  many people who do business on the Internet. Restricting access, means stopping people from being able to get at certain websites, limiting users to ‘just a few' websites'. It will over time, kill off many online businesses who set up on the basis that the whole of Europe was their market.

To see why one might reach this interpretation of this amendment, we need to look closely at the text. At first glance it doesn't make sense -  a normal, lay person would not see why ‘restrictions on users access to the Internet' would ‘enhance the development of the Internet' (Information society is EU jargon for ‘Internet'. ) But , with a rights-holders would argue that ‘cleaning' the Internet of peer-to-peer traffic, would enhance the Internet, leaving it clear for them to sell their content at premium prices and recapture the mass audiences.

The wording of the amendment includes a    requirement  that Member States "shall" implement the restrictions in a particular manner. It is not clear to me whether  this  implies that restrictons  will be mandated, or whether the meaning is that if  they are implemented, they must be done in a particular manner, using "appropriate measures" . Certainly, when we read this amendment in conjunction with the other amendments which specify restrictions  specify that users access it to be either limited, restricted or made conditional, there could be an interpretation that restrictions on access are to be mandated. (Help from my lawyer-readers please!!) 

The ‘appropriate measures ' of the implementation is that these restrictions will be aimed at ‘enhancing the development of the Information Society" These measures must also be

".. in full respect of the right to property (copyright) and the right to an effective remedy"  This refers to the rights-holders right to a remedy - where in legal jargon, a ‘remedy' is either a punishment or compensation. 

It is unknown as yet, who drafted this new amendment, numbered 147 in the draft recommendation for Second Reading, prepared by the Rapporteur Malcolm Harbour . However, M. Toubon has filed another amendment, with a justification citing UK government requirements as the rationale, so one could postulate that it could have been written either by the UK government or the regulator Ofcom, or by French interests. M. Toubon  has been an enthousiast of the ‘British proposals' since the first reading plenary session on 24 September.

 

Amendement 147

Jacques Toubon

Position commune du Conseil - acte modificatif

Article 1 - point 21 a (new)

Directive 2002/22/EC

Article 32 a (new)

Position commune du Conseil Amendement

(21a) the following Article shall be

inserted:

"Article 32a

Member States shall ensure that any

restrictions on the rights of users to access

content, services and applications, if such

restrictions are necessary, are

implemented by appropriate measures, in

accordance with the principles of

proportionality, effectiveness and

dissuasiveness. The measures shall be

aimed at enhancing the development of

the information society, in compliance

with the EC legal order, and shall fully

respect the fundamental rights protected

by the Community legal order, including

the right to privacy, the right to property,

the right to due process and the right to

an effective remedy."

Or. en

 

Council compromise amendment in document dated 20.03.2009

Possible new recital:
Directive 2002/22/EC neither mandates
nor prohibits conditions imposed by
providers, in accordance with national
law, limiting users' access to and/or use
of services and applications but does
provide for disclosure of such conditions.
Member States wishing to implement
measures regarding users' access to
and/or use of services and applications
must respect the fundamental rights of
citizens and any such measures should
take full account of policy goals adopted
at Community level, such as furthering
the development of the Community
information society.

 

The original Article 32(a) tabled by MEP Eva-Britt Svensson and carried by the European Parliament on 24 September 2009 : 

The following Article 32a shall be added:

"Article 32a

Access to content, services and applications

 

Member States shall ensure that any restrictions to

users' rights to access content, services and

applications, if they are necessary, shall be

implemented by appropriate measures, in

accordance with the principles of proportionality,

effectiveness and dissuasiveness. These measures

shall not have the effect of hindering the

development of the information society, in

compliance with Directive 2000/31/EC, and shall not

conflict with citizens' fundamental rights, including

the right to privacy and the right to due process. 

 

A reader has sent in this  helpful table to compare the two texts.

 

Toubon AM147

 

 

 

Member States shall ensure that any restrictions on the rights of users to access content, services and applications, if such restrictions are necessary, are implemented by appropriate measures, in accordance with the principles of proportionality, effectiveness and dissuasiveness.

 The measures shall

 

be aimed at enhancing

 

the development of the information society, in compliance with the

 

EC legal order,

 

 

 

 

 

 

and shall

 

fully respect

 

the fundamental rights

 

protected by the Community legal order,

 

including the right to privacy

 

, the right to property,

 

the right to due process

 

and the right to an effective remedy.

Amendment 71 (IMCO-report)

(1st reading AM166 by Svensson)

 

Member States shall ensure that any restrictions on the rights of users to access content, services and applications, if such restrictions are necessary, are implemented by appropriate measures, in accordance with the principles of proportionality, effectiveness and dissuasiveness.

 Those measures shall

 

not have the effect of hindering

 

the development of the information society, in compliance with

 

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)*,

 

and shall

 

not conflict with

 

the fundamental rights

 

of citizens,

 

including the right to privacy

 

and

 

the right to due process.

 

Please quote iptegrity.com in referring to this article. 

 

 

 

 

 

 

The Copyright Enforcement Enigma tells the story of the 2009 Telecoms Package and how the copyright industries tried to hijack it.

'accurate and absorbing account of the story of the Telecoms Package' -Journal of International Commercial Law and Technology

'...a must read for those interested in knowing in depth about copyright enforcement and Internet.' -Journal of Intellectual Property Rights.  

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Copyright Enforcement Enigma launch, March 2012

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Iptegrity.com is the website of Dr Monica Horten, European expert on Internet policy and Visiting Fellow at the London School of Economics & Political Science. She is an independent expert on the Council of Europe Committee on Cross-border flow of Internet traffic and Internet freedom (MSI-INT). She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy. Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

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The Copyright Enforcement Enigma - Internet Politics and the ‘Telecoms Package’

by Monica Horten

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