Is there a difference if 3-strikes measures are optional at European level, rather than obligatory? This is a key question for policy-makers as they prepare for  the European Council vote on Thursday. 

*You can watch the European  Council  debate the Telecoms Package  on a webcast via this link  from 9.15 am (8.15 am  UK) on Thursday 27th November*

 The Council of Ministers has today published its compromise proposals for the Universal Services Directive and they  are now available online (this was the main part of   the Harbour report in the European Parliament) . The main change is that the requirement for telecoms regulators to enforce "co-operation" agreements between ISPs and rights holders, has been made optional, not compulsory:  the word 'shall' which conveyed the obligation,  has been replaced by 'may' (in Article 33 (2a) which was confirmed recently by MEP Ruth Hieronymi as 'anchoring' Olivennes-style proposals into the Package). Thus, it would appear to  imply a kind of optional 3-strikes or indeed, a voluntary agreement between the two industries for the purposes of enforcing copyright. 

Another significant change is the removal of the requirement for ISPs to

state 'restrictions of service' in their contracts, and for them to contractually limit users to 'lawful content'. This, as noted in my paper Packaging up copyright enforcement (available on this website) is the key mechanism for graduated response / 3-strikes measures.

So that looks positive, however, this contractual requirement  has been replaced with one that obligates ISPs  to be transparent about their  traffic management policy. That may mean  bandwidth allocation and similar things, but it may also  mean content and applications  filtering. 

There is a similar  requirement in the Authorisation directive, that ISPS  must be transparent about 'traffic management' (filtering) policies. However,  there are no regulatory mechanisms for ensuring that transparency doesn't lead to abusive practices (eg we told you in the contract that we filter VoIP, so you have no comebacks if you can't use VoIP).

 As I've already reported, the deletion of this notion of lawful content, means that  the  liability on the ISPs for enforcing 'lawful content' is removed, and that is, I think, a positive move.

User safeguards are deleted. Article 32a (Amendment 166) voted by the European Parliament as a safeguard for end-users, to protect against surreptitious or disproproportionate sanctions without due process, has been deleted without justification or explanation, as I have previously reported. So too, has a transparency requirement to publish information and allow for regulatory oversight (Article 28(2) or Amendment 101). 

And, as previously reported, the controversial Amendment 138 has been deleted from the Framwork directive.  

So where does this leave us? It certainly would appear to mean that governments may give their blessing to a series of private and secret 3-strikes deals, in which the Internet users get no say, and also get no protection in the event of unfair or unreasonable behaviour on the part of either rights-holders or ISPs. With no return obligation on the rights-holders to sort out their business models for the Internet environment.  

I think it leaves a set of contadictions in the legislation, which normally the Council of Ministers should remove. The Framework directive states explicitly in Article 2, that this legislation only deals with the transmission of electronic signals, and not with editorial content or information society services. Is it not a contradiction to then have an article within the Package that deals explicitly with requirements related to content, and indeed, requirements related to a different industry?

The Universal Services Directive is described in the Council's introduction as a directive also known as the 'citizens rights directive'.  I have never heard it called that,  but if we take the Council's word for it, then is it not  contradiction that  it contains an article which prescribes an industrial deal which is arguably protectionist (Article 33 (2a))? 

 And indeed, a deal which will arguably serve to fragment the internal market, in direct contradiction of the key objective of the Package, which was about harmonisation of the internal market. 

And indeed, is all this just to serve the industrial interests of one member State - France? 

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