Amendment 138 falls out into the Grand Place…….

For some time the European Commission and the European Parliament have been in discussion in relation to the development of a new Telecoms Package, a raft of new laws with the intention of revising and updating the regulatory control of the telecoms industry. Included within the package were updates to the Privacy and Electronic Communications Directive that would impact on the receipt of cookies (commonly used by advertisers and others) by a web browser.

But, the passage of the Telecoms Package was held up by the introduction of an amendment, Amendment 138 which aimed to control the move towards the ‘3 strikes and you’re out’ approach to the regulation of peer to peer file sharing.

The rights industry has been pushing hard for national governments to adopt the ‘3 strikes’ approach as a way of trying to contol the use of file sharing and unlawful copying of rights protected materials. The idea is that users identified as engaged in unlawful filesharing will receive a letter from their ISP to advise that the sharing is unlawful and (in pretty much most cases) in contravention of the ISP acceptable use policy. Experience suggests that the first letter had some effect in about 50% of cases. Many of those responded to confirm deletion of infringing materials and that they would not engage in any further file sharing. For those that continue, a second, stronger letter would be sent before a third letter and then disconnection of internet service.

It is the disconnection that is the problem. Many now consider access to broadband as a basic human right - alongside access to water, power etc. There was political support for the view, including from Mdme Reding, European Commissioner for Information Society. The problem was (is) that disconnection would take place without judicial review and potentially without the option for the accused user to defend their position and argue their innocence. When the Telecoms Package came before the European Parliament it was amended by Amendment 138 to require judicial intervention and oversight before disconnection.

The Amendment provided the clear requirement for a judicial role and in so doing acted as a brake on the proposals by certain European governments to press ahead with legislation to enable ‘3 strikes’. Before any disconnection could take place a rights owner would have to go before a judge and plead a case for disconnection of the user. And, of course, the user would have the opportunity to defend his position. In France, President Sarkozy promoted the ‘Hadopi’ legislation and in the UK, the Digital Britain report and the Business Secretary, Peter Mandelson, engaged in discussions to push ahead with a ‘3 strikes’ approach. It is notable that Peter Mandelson appears to have come out strongly in favour of ‘3 strikes’ since a weekend meeting with a leading producer.

For the European bureaucrats and politicians the groundswell of public support for Amendment 138 provided a problem. Whilst the Amendment was debated it held up progress on the whole Telecoms Package and with the imminent arrival of the Lisbon Treaty conference there was a political need for progression.

Now, at the last minute and just before the conference, there has been agreement in Brussels to accept a watered down version of the amendment Pressure from national governments that will allow them to introduce disconnection for persistent file sharers (and who else the Crusher wonders?).

Jérémie Zimmermann, spokesperson for La Quadrature du Net,(quoted on ISPreview) said: “Amendment 138 was in haste dissolved into useless legalese and soft consensus. The Parliament hurried to get rid of the safeguards of citizens’ freedoms because it knew that with the imminent coming into effect of the Lisbon treaty, both institutions will soon share the legislative power in the field of judicial affairs. And the bad excuses we have heard these past few days to justify to abandon amendment 138 will then be totally obsolete. In the end, the Parliament was not brave enough to stand against the Council to defend citizens’ freedoms.

Ministers of Member States, who want to be able to regulate the Net without interference from the judiciary, were rushing to kill amendment 138 and put an end to the negotiations. It is a shame that the Parliament’s delegation, and especially rapporteur Catherine Trautmann, was not determined enough to use the political context to assert its authority in the European lawmaking process in order to protect European citizens. Even though it has been an interesting and constructive discussion, amendment 138 has turned, by the lack of courage of the delegation, into the emblem of the powerlessness of the Parliament.”

So, in the face of political pressure to reach agreement before the meeting of Heads of State/Prime Ministers to conclude ratification of the Lisbon Treaty and the appointment of a new President of Europe, the Council has over-ridden the European Parliament (which had previously voted substantially in favour of Amendement 138) which has now accepted the reduced version limiting the rights of the citizen.

The way is now clear for those member states who wanted to introduce ‘3-strikes’ to do so. In the UK, Lord Mandelson has now announced actions to be taken against repeat piracy offenders and procedures will be included in the Digital Economy Bill expected to be included in the Queen’s Speech (18th November) with passage through Parliament before the end of the current session.

Lord Mandelson met with Internet industry representatives before the announcement was made. Mandelson asked the Internet industry to consider the proposed ‘3-strikes’ process in the context of the wider business economy (in iother words, consider the impact of filesharing on the revenues of the music industry) and to realise the importance of creativity. The Crusher understands that Lord Mandelson was fairly combative in his approach to the Internet industry but that the industry did make him aware of their concerns about proportionality, cost, options for alternative modes of contents delivery, due process etc.

The devil, as they say, will always be in the detail so it remains now to see how the Digital Economy Bill is drafted in order to see exactly how the ‘3-strikes’ approach will work in the UK. It would seem likely that the rights industry will contribute to the costs of the ISP in communicating with users and that there will be a likely lengthy process before any disconnection take place. It is likely that Ofcom will set up a dispute panel procedure to hear appeals from consumers targetted for disconnection and that Ofcom will collate information relating to the issue of notifications.

But - time is now running out for this Government. A full General Election must be held before June 2010 at the latest. As we are now clearly in the run up to the election and campaigning has been going on for some time, The Crusher wonders whether the Govt. will actually be able to progress the Digital Economy Bill to the Statute Book before dissolution.

The other matter, of course, is in Brussels. The actions there point to the ineffectiveness of the European Parliament. The elected representatives of the European citizenry are over-ruled and kicked into touch by member states acting in the European Council. The European Parliament has no ability to initiate legislation and can only comment and amend - it seems now that their ability to amend has been curtailed in the face of opposition from member states.

Hadopi - three strikes and …. it’s out!

The French farce continues.

After passage through a singularly empty French assembly, then return to a more populous house, the Hadopi law (Haute Autorité pour la Diffusion des Oeuvres et la Protection des droits sur Internet - Higher Authority for the Distribution of Works and the Protection of Copyright on the Internet) has now received a further setback.

The superior court in France, the French Consititutional Court, has now ruled that access to Internet services can only be denied on the authority of a judge. The court has recognised the view in the European Parliament that Internet access is a basis human right - as also now recognied by Ofcom in the UK. The introduction of the bill to create the Hadopi in France was contentious - in France and elsewhere. Supported by President Nicolas Sarkozy the bill would have created a new agency with the power to disconnect users on third notification of file sharing infringement. The agency would also place the users on a blocklist to prevent them from simply migrating to another provider. This cannot now happen - any process to remove a user access must now go before a court and a judge - with the user able to defend his position in court.

The UK Government has already indicated that it does not favour the 3 strikes approach - again echoing the view that broadband access is now seen as a basic human right.

It’s back to the drawing board for the rights owners. Perhaps these actions might just focus their minds to consider some new business models. But then ‘les cochons peuvent voler’ as they might say in France.

French farce

A few postings ago we reported on the vote in the French Senate that introduced the ‘Hadopi’ law, providing for the 3-strikes and you’re out principle to be adopted by rights owners seeking the disconnection of persistent file sharers. After the initial vote in a sparsely attended house, the law passed on to the National Assembly where a rather larger house voted it down. Now it seems that the French authorities have adopted the European approach - if at first you don’t get the result you want, ask them to vote again until they give the right result!

The law was returned to the National Assembly for another attempt and this time it seems that there was a rather fuller attendance. Perhaps some ‘persuassion’ by the French equivalent of the Whips? There is clear intention by the French Government to push the law through and in advance of voting in the European Parliament on the Telecom Reform package.

A large number of amendments to the Bill made it impossible to proceed through the voting process by 5th May and the Bill must now return for further debate. It is seen as likely that this will be by mid-May so it is quite possible that President Sarkozy will see the new legislation in force by the end of the month. This will allow the setting up of a new agency (the HADOPI) which will deal with copyright infringement notices submitted by rights owners and will decide whether to warn or to disconnect users and place them on a list of blocked persons.

Quite clearly this will not be a popular piece of legislation. Civil rights campaigners will be campaigning and asserting that the law will be an infringement of the rights of the citizen. But the campaigners will have some powerful allies. MEPs voting in the European Parliament in Brussels and Strasbourg have indicated that they view internet access as a fundamental service and have voted down 3-strikes approaches.

When the Telecom Package came up for 2nd reading in the European Parliament, MEPs voted 407 to 57 for initial amendment 138 rejecting the Trautman report and reverting to the initial text which provided that only judicial authorities would be able to make decisions on cutting off users. The reversion to judicial authorities means that users accused of infringement would be able to submit a defence and to appeal any decision. It would seem that the HADOPI proposed in France would not be accepted as a judicial body and would not be acceptable under the European package.

Going further, it is interesting to read comments by Commissioner Redding responding to questions in Brussels: “The fourth element I would like to underline is the recognition of the right to Internet access. The new rules recognise explicitly that Internet access is a fundamental right such as the freedom of expression and the freedom to access information. The rules therefore provide that any measures taken regarding access to, or use of, services and applications must respect the fundamental rights and freedoms of natural persons, including the right to privacy, freedom of expression and access to information and education as well as due process?”

Now that makes the Commissioners view quite clear. Internet access is a fundamental right and any rules must respect fundamental rights and freedoms. That will make it difficult to impose any 3-strikes approach without their being a judicial process. Even then, there must be compelling reason to act - and, I suspect, copyright infringment will not be there as the most compelling reason. Perhaps use of the internet to download paedophilic content might be there.

So, how will this impact on the UK. There is discussion in Govt. and we are awaiting the final version of Stephen Carter’s ‘Digital Britain’ report. Trails suggest that that may include details of a Digital Rights Agency - amongst other things. The report is now unlikely to arrive before mid-June - it will not be published in the run-up to local and European elections at the beginning of June - and will probably be after voting in the European Parliament. Any agency that is then set up will have to accommodate the European Telecoms Package - so we are unlikely to see any 3-strikes here. Unlikely anyway as Govt. Ministers have now indicated that this is not favoured by Govt.