For the backstory to the upload filter check my book The Closing of the Net - PAPERBACK OR KINDLE - £15.99!

Telecoms package

The Telecoms Package (Paquet Telecom) was a review of European telecoms law. Ordinarily, it would have dealt with network infrastructure and universal service and other purely telecoms matters. However, buried within it, deep in the detail, were important legal changes that related to enforcement of copyright. These changes represented a threat to civil liberties and risk undermining the entire structure of Internet, jeopardising businesses and cultural diversity.

The bottom line is that changes to telecoms regulations are needed before EU member states can bring in the so-called "3 strikes" measures - also known as "graduated response" - of which France led  the way, but other governments, notably the UK,  followed. A swathe of amendments were tabled at the instigation of entertainment industry lobbying. These amendments were aimed at bringing an end to free downloading. They also brought with them the risk of an unchecked corporate censorship of the Internet, with a host of unanswered questions relating to the legal oversight and administration.

The Telecoms Package was voted in the plenary session of the European Parliament on 24th September. It followed a brief debate on 2nd September, and a committee vote in July. In November last year it was  put to vote in the European Council. Now - winter 2009 - it is headed for a second reading in the European Parliament. The official start will be 18th February, but negotiations are underway now. The plenary vote was planned for 21 April.  It has been re-scheduled to 6 May.  This timetable has not left much time for public debate, and it reminds me of the rushed passage of the data retention directive (see Data Retention on this site). It is, if you like, regulation by stealth.

I had originally planned  that this site would just highlight reports from elsewhere, related to my research topic. But at the time, it felt  wrong to me that such critical changes - which will infringe on people's freedoms and fundamentally alter the social and legal character of the Internet - should happen without at least the opportunity for a full and frank public debate. So I set out the issues as I see them, and reported on relevant public events.

If you like the articles in this section and you are interested in EU telecoms law and the 2009 Telecoms Package, you may like my books A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms and The Copyright Enforcement Enigma - Internet Politics and the ‘Telecoms Package’

I have written a series of  briefing papers. You are free to download them. They are released under a Creative Commons licence. You are free to use them, but you should attribute it to me as the author, and reference their publication on iptegrity.com.

The first paper discusses why we should protect  the 'mere conduit' principle: 'The ‘Telecoms Package’ and the copyright amendments – a European legal framework to stop downloading, and monitor the Internet

The second paper discusses network filtering:  Deep packet inspection, copyright and the Telecoms Package

The third paper discusses copyright enforcement policy:  Packaging up copyright enforcement - how the Telecoms Package slots in the framework for a European policy to restrict Internet content 


Finally,  you may like my book The Closing of the Net which contains a breif summary of the Telecoms Package story with regard to copyright, and moves the policy agenda on to consider other issues of secondary liability including,  the Megaupload case.

But it will keep an amendment for processing traffic data in support of graduated response, in the e-Privacy directive.

 

The European Council review of the e-Privacy directive in the Telecoms Package will dump a proposal for a study on IP addresses  from the European Data Protection Supervisor (EDPS). The proposal was included in the Telecom Package - Universal Service

Read more: European Council to dump EDPS recommendation

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 over

Read more: "Co-operation" amendment WAS designed to support 3-strikes

A Council working document has dropped without explanation or even a formal deletion, the 'pro-Bono' amendment 166 (Article 32a) of the Harbour report, which reiterated the Parliament's opposition to 3-strikes measures. Other measures will impose costs on ISPs, and remove  oversight by the European commission and national Regulators to protect users in cases of content filtering.

 

The document, which emerged yesterday, comes from the European Council working party on Telecommunications and the Information Society.   It has  scrapped the pro-Bono amendment (166 numbered as Article 32a), which voted by a clear majority in the Parliament.  The Article is simply NOT in the document. There is no text to explain why - it is usual for text that is amended to be crossed out and an alternative put in its place. The other amendments from the Parliament are in the text.  One has to ask the question therefore, whether this is an   attempt by the Council to bury an inconvenient piece of law, and to go against the wishes of the elected Parliament. 

 So that it is not forgotten, here is the text which the Council wants to hide:

Amendment 166 Proposal for a directive – amending actArticle 1 - point 19 b (new)Directive 2002/22/ECArticle 32 a (new) 19b)

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."

 

The deletion comes together with other changes to implement measures which make a 3-strikes regime easier. They scrap the

Read more: European Council set to overturn Parliament on 3-strikes

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States v the 'Net? 

Read The Closing of the Net, by me, Monica Horten.

"original and valuable"  Times higher Education

" essential read for anyone interested in understanding the forces at play behind the web." ITSecurity.co.uk

Find out more about the book here  The Closing of the Net

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Copyright Enforcement Enigma launch, March 2012

In 2012, I presented my PhD research in the European Parliament.

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Iptegrity.com is the website of Dr Monica Horten. She is  a trainer & consultant on Internet governance policy, published author& Visiting Fellow at the London School of Economics & Political Science. She served as an independent expert on the Council of Europe Committee on  Internet freedom. She has worked on CoE, EU and UNDP funded projects in eastern Europe and beyond.  She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy (and now Brexit). 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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