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Confusion and Dismay Strike EU Enforcement Overlords

The rather boring series of posts recently was triggered by the announcement last December of a consultation on the review of the Intellectual Property Enforcement Directive (IPRED 1) passed in 2004. Closing date for submissions is next week, March 31st. Before continuing with an analysis of the review and a summary of my concerns, two recent incidents are worth noting.

1. Michel Barnier’s Letter to Françoise Castex & Stavros Lambrinidis
In response to a written question from two MEPs about the ‘stakeholders dialogue on illegal uploading and downloading’, reported here, Commissioner Barnier of Internal Market responded with a letter on March 7th. Therein he states:

“In conformity with the Commission’s “Better Regulation” initiative, a public consultation has been launched on the Report of the IP Enforcement Directive, adopted by the Commission at the end of 2010. Participants in the stakeholders dialogue do not benefit from a preferential position during this consultation.”
(my trans.)

Regular meetings took place between the private sector and Commission officials for the preceding year and a half; the ‘stakeholders dialogue’ was held almost monthly. In addition there was also the of ‘legal sub-committee‘, representing the same sector of rightsholders (but with less interference from those pesky Telcos and ISPs). The contents of the Report mirror the subjects discussed at those meetings. so much is in fact acknowledged in Annex 2 of the Commission Staff Working document relating to the methodology of the review:

“Apart from the information contained in these reports, the Commission did not receive a substantial amount of additional information fromthe Member States’ authorities, neither during the implementation period, nor after the transposition of the Directive into the national law. As a result, and because of the reasons mentioned above, the information received had to be complemented from other sources, in particular through consultation with rightholders, and in particular through the consultation of legal experts from the private sector who meet regularly in the legal subgroup that has been formed in the context of the European Observatory on Counterfeiting and Piracy.”

So is it the case that the chance to continuously inject opinion and information during a documents assembly does not constitute ‘a preferential position’? Or was it just a matter of judicious reference only to the stakeholders dialogue, with the hope that the legal sub-committee (see details) might be forgotten?

He also claimed that Data Protection officials were present at any meetings where the identification of users by means of their IP address was discussed, and while I don’t know it for a fact, I would be interested in hearing if that was the case in February, April and July 2010 when these matters were discussed in the stakeholders dialogue. Reports I have read of these meetings are strangely omit to make any mention of their presence.

2. Fröhlinger Calls Halt

Better still, the very next day, Margot Fröhlinger, titular head of the stakeholders dialogue wrote to announce that it was over! Her apportionment of the responsibility of the blame is rather vague, as she bemoans how:

“An exchange of ideas on possible joint actions to promote access to legal offers and on user awareness could have brought new insights on how to assist consumers to legally enjoy premium content.”

Schade. Apparently some stakeholders are…

…less willing to continue with the dialogue. These stakeholders perceive the format of the stakeholder’s Dialogue, as well as its timing, as not appropriate and as not useful.

Which is just plain unsporting of them if you ask me. Presumably the stakeholders referred to are the ISPs and Telcos, although that’s a bit of deductive work on my part: consumers and users groups never participated, therefore they couldn’t leave; the content industry doesn’t pass up a chance to hang with their chums in the Commission.

Interestingly her letter also announces the intention to ‘reach out to the general public, through additional hearings, in order to take account of the public interest, to the maximum extent possible.’ Does that mean the consultation will be extended beyond March 31st?

Other views/responses: read Iptegrity’s take on events. Likewise PCimpact published a response (in French) from Jerome Zimmerman of La Quadrature du Net.

March 23, 2011 - Posted by | ECPO, enforcement, european directives, european union

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