The early winter sunshine is sweeter still since the announcement of the European court of Justice’s decision (full text) in the SABAM v Scarlet litigation yesterday afternoon.
This case began in 2004 with the Belgian copyright and collective rights organisation taking a legal action against the ISP Scarlet to implement measures to stop their users from violating copyright through use of p2p software. To this end they sought to oblige the ISP to institute a filtering system which would have intervened to terminate data transfers involving works identified as copyrighted.
Decisions in the Belgian courts went in SABAM’s favour, but no-one could come up with a feasible technical scheme capable of meeting the plaintiffs requirements. Eventually the national authority referred the matter to the ECJ.
The Legal Calculus
Argument at the ECJ centred around the following issues:
(1) Both Copyright directive and the Intellectual Property Enforcement Directive established that copyright owners should have access to injunctions as a means to halt ongoing infringements, the question was – and to some extent remains – to what extent and with what consequences.
(2) The eCommerce directive set out clear limitations to the liability of ISPs, including cases where they act as ‘mere conduit’ for data transactions in which they are not direct protagonists but merely instruments of their users. In addition to sveral enumerated safe harbours, the eCommerce directive also limits the legislative discretion of individual states as regards the obligations of ISPs in Article 15:
Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating unlawful activity.
(3) Monitoring users’ data traffic involves the processing of personal data as protected by European Data Protection directives, which consequently must be taken into consideration in assessing the validity of any proposed filtering scheme.
(4) Multiple rights and freedoms protected under the European Convention on Human rights and the Charter of Fundamental Rights of the European Union (which became part of EU law in 2009) are implicated in the adjudication. On one side the property rights of the copyright owners, on the other the rights of privacy and freedom of expression of internet users, and the freedom to conduct business of the ISP.
Round 1: The Advocate General’s opinion
Cases sent to the ECJ are first analysed by the office of the Advocate General, who produce an advisory opinion for the Court, which is not however bound by either its mode of analysis or conclusions. The examiner in this case was the spaniard Pedro Cruz Villalón. His attention focused on the question of the consistency of such injunctive relief with the Charter, and his conclusion was that it was noncompliant and in breach of the principle of legality on several counts. At the core of his opinion (in french) was a criticism of the general nature of the surveillance system sought by SABAM, its lack of proportionality and indefinite duration. Having resolved the question by reference to the Charter, he did not delve into the conflicting provisions of the different directives.
Round 2: The ECJ decision
The ECJ however elected to approach the matter the other way around, dealing first with the question of Article 15 of the eCommerce directive. An indication of the result is already provided by the framing given by the Judges to the proposed filtering system, which abounds with red flags:
29. … a system for filtering
– all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;
– which applies indiscriminately to all its customers;
– as a preventive measure;
– exclusively at its expense; and
– for an unlimited period,
Indeed it only takes another six paragraphs for the scheme to be definitively struck out:
36. In that regard, the Court has already ruled that that prohibition applies in particular to national measures which would require an intermediary provider, such as an ISP, to actively monitor all the data of each of its customers in order to prevent any future infringement of intellectual-property rights. Furthermore, such a general monitoring obligation would be incompatible with Article 3 of Directive 2004/48, which states that the measures referred to by the directive must be fair and proportionate and must not be excessively costly (see L’Oréal and Others, paragraph 139).
The Judges then proceeded to deal with the vying rights and freedoms under the Charter.
43. The protection of the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected.
44 As paragraphs 62 to 68 of the judgment in Case C‑275/06 Promusicae  ECR I‑271 make clear, the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights.
45 More specifically, it follows from paragraph 68 of that judgment that, in the context of measures adopted to protect copyright holders, national authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures.
46 Accordingly, in circumstances such as those in the main proceedings, national authorities and courts must, in particular, strike a fair balance between the protection of the intellectual property right enjoyed by copyright holders and that of the freedom to conduct a business enjoyed by operators such as ISPs pursuant to Article 16 of the Charter.
Reference to Article 16 caught my attention as it was not mentioned at all in the Advocate General’s opinion. In addition it is raised as the first countervailing factor weighing against any absolute vindication of the copyright owners’ rights. Next up are the rights of individual users:
50 Moreover, the effects of that injunction would not be limited to the ISP concerned, as the contested filtering system may also infringe the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively.
51 It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified.
52 Secondly, that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.
SABAM have issued a press release with the somewhat misleadinbg title ‘Authors worried about the decision by the Court of Justice of the European Union’ (which authors exactly?), wherein they announced that they are going to lick their wounds in private and reflect on the options left open to them by the decision.
Meanwhile the IFPI took the opportunity to emphasise that the decision reiterated the sanctity of copyrights online and that the problem here was merely in the overbroad nature of the injunction sought by SABAM, and would not undermine either their three strikes schemes or pursuit of so-called rogue sites.
La Quadrature du Net hailed the decision:
At a time of all-out offensive in the war against culture sharing online, this decision suggests that censorship measures requested by the entertainment industry are disproportionate means to enforce an outdated copyright regime.
They also point to the more general landscape in which the decision occurs, specifically the current passage of the Anti Counterfeiting Trade Agreement and the upcoming consent vote regarding the Treaty at the European Parliament.
Naturally Belgacom, the current owners of Scarlet also expressed satisfaction with the result, which comes more generally at a time when rightsholders have been trying to corner ISPs into more intense policing of their users, an operation to which the European Commission has also been party.
It’s a Knock Out
In sum this is a rare occasion to celebrate as regards legal developments concerning online freedom. This decision will have an important impact on national jurisprudence throughout the Union, and will put pressure on legislators to tailor any further copyright enforcement measures with at least some regard to proportionality and fundamental rights. Of course there are other fronts to this battle, notably the current hysteria about so-called rogue sites. At a later point I will provide an EU-wide survey of the situation in that regard, and of course there is legislation pending on the same theme in the US.
My intent initially was to publish this in January, but as the preceding posts make clear, there was considerable digging to be done to get a better picture of the context. In what follows, I begin with some comments with regard to shaky basis for the enforcement project, and then move on to a more detailed review of the Commission’s report.
1. The most noteworthy element of the Commission’s Report on the IP Enforcement Directive is what is absent. The Directive itself mandated the review, under Article 18, titled ‘Assessment’:
Three years after the date laid down in Article 20(1), each Member State shall submit to the Commission a report on the
implementation of this Directive.
On the basis of those reports, the Commission shall draw up a report on the application of this Directive, including an assessment of the effectiveness of the measures taken, as well as an evaluation of its impact on innovation and the development of the information society (my emphasis).
Those interested in reading about ‘impact on innovation and the development of the information society’ will be disappointed, as such a section does not exist. Late transposition by several member states is offered as explanation for its absence. Yet this tardiness was no obstacle to a commentary on the efficacy of the Directive’s enforcement measures. A strange anomaly, but easily explained:
“… in the context of the European Observatory on Counterfeiting and Piracy, DG Internal Market and Services works with experts from the private sector to assess the application of the Directive and to complete the information received from the Member States.”
Commission Staff Working Document, p.5 (hereinafter CSWD)
So we’re in good hands. Elsewhere the Report relies on work commissioned by copyright industry players in support of its assertions, such as that produced by Tera consultants, whose methodology was questioned by the Social Sciences Research Network (SSRN).
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.”
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?
in July 2009, three months after the McCreevy’s announcement of the European Observatory on Counterfeiting and Piracy (EOCP), a ‘stakeholder dialogue on illegal up and downloading’ was launched under its auspices and the direction of Margot Fröhlinger, Director for Knowledge-based Economy at DG Internal Market.
The goal was to achieve an accommodation between content owners and the infrastructural intermediaries. From the beginning the Commission have indicated that should the parties fail to come to voluntary agreements, the EC will amend one of its directives and impose a solution: E-commerce Directive (2000/31), the Infosoc Directive ( 2001/29) or the Enforcement Directive (2004/48).
Users and Consumers Missing from the Equation
Representatives of media companies, trade associations, collecting societies and ISPs have been involved in the monthly meetings. European Consumer group BEUC refused to participate, and, whether for wont of an invitation or lack of interest, no organization representing consumer or user interests was involved.
Two spheres of activity have dominated the attention of the EOCP since its inception: the rather insipid sounding ‘stakeholder dialogue on illegal uploading and downloading’ and a subgroup working on a review of the implementation of IPRED1 and proposals for the future. Where the first attempts to broker agreements between corporate players on opposing sides of the policy battle, the second is dedicated to the generation of new legislative substance. In addition there is work being done on public awareness initiatives around the ‘problem’ of counterfeiting and piracy.
Preparing the Ground for IPRED2: Legal Subgroup; Whois?
This has a relatively small membership made up of Commission employees such as Alvydas Stančikas together with representatives from national anti-counterfeiting groups (France, Italy, Sweden, Belgium, Netherlands), their European counterparts (SNB REACT), the International Federation of the Photographic Industry, Motion Picture Association, Business Software Alliance and lawyers representing collecting societies such as BASCAP and major software producers. There are no participants from consumer or civil liberties groups, or indeed from any other NGO. Nominally the European Consumer Organization – BEUC – should have a member present as well, but this has not come to be, for reasons unclear.
In the second week of December a wikileaked US diplomatic cable from February 2010 revealed the US ambassador’s scepticism at the motivations behind the Romani Law (Decreto Romani), nominally the Italian implementation of EU Directive 2007/65 on Audiovisual Media Services.
The cable described at some length how the law’s provisions could be exploited to the benefit of the Berlusconi’s media empire. Amongst other matters, the decree promised greater action on copyright, an area in which the Italian government had hitherto been somewhat disinterested. In fact the design of the Romani Law was driven largely by the need to restrict the commercial activities of Sky, the only effective private sector competitor to Mediaset.
From this perspective the legislation is in historical continuity with its predecessor, the Gasparri law, whose purpose was to ensure an undisturbed transition of media power in the shift from the analogue to digital framework. Yesterday’s incumbents – Berlusconi and RAI – would also be tomorrow’s. The Gasparri law was ultimately the target of a complaint procedure by the European Commission begun in 2006.
Just a couple of days after the leak, on December 17th, the Italian communications authority, Agcom (Autorità per le garanzie nelle comunicazioni), under the powers assigned to it by the Romani Law, announced new measures to be used against sites hosting materials that infringe copyright.
What is Agcom?
Agcom was established by the Maccanico law in 1997 as an agency somewhat independent of the government; of its eight members four are selected by the Parliament and the other four by the Senate. The authority is charged with overseeing infrastructure and competition in the communications sector, and even-handedness in broadcasting. Currently it is under pressure from Minister Paolo Romani to punish a program, Anno Zero, presented by Berlusconi critic Michele Santoro, on the grounds of broadcasting “claims of a gratuitous character, derogatory and seriously damaging to the dignity and decorum of eminent political personalities” on several occasions in January, ie allegations against Berlusconi in relation to soliciting child prostitutes aka the Ruby case…
Marketing Enforcement Strategies
Subsequent to Agcom’s announcement of the new measures, the ‘anti-piracy’ organization FAPAV (Federazione Anti-Pirateria Audiovisiva) held an event in Rome in mid-January to present the Italian aspects of a study commissioned on the detrimental effect of copyright infringement on employment in Europe, produced by Tera Consultants under commission by BASCAP and the International Chamber of Commerce.
As usual improbably large figures were thrown around (billions of euros and 22,000 jobs lost!) with no reference made to the provision of the underlying ‘raw data’ by the IFPI (music industry lobby) and FIMI (their Italian satellite) and a marketing company, IPSOS. No discussion of methodology either, perhaps advisedly so, as the Social Sciences Research Council (who are conducting similar investigations) had publicly criticised it when the report was initially published in March 2010. Not that any of the journalists reporting the event seemed to care: as usual they reproduced faithfully what they were told .
FAPAV had invited Nicolas Saydoux, head of French trade group and antipiracy lobby ALPA, to entertain the audience with a fairytale: how a strategy combining 3 strikes legislation and an increased range of legal products on the market had succeeded in reducing piracy levels by 85% – in less than six months!
Obviously FAPAV would like to see similar measures taken against users in Italy but for now they will have to make do with Agcom’S proposals, namely a system whereby copyright owners can complain to sites hosting their materials or linking to other sites which do, and request the material’s removal. Where no action is taken within 48 hours, the complaint is passed to Agcom, who, after examination of the offending material, will demand its removal. In the absence of compliance fines can be imposed.
To deal with sites based outside of Italy, it is proposed having checked that infringing content was available, Agcom could order providers to ban the IP or DNS so as to prevent access. Such an approach is already in use against foreign gambling sites, and notoriously also in place against the Pirate Bay – not that this has stopped many Italians from circumventing these controls on access to TPB.
What is really interesting about all this is that Agcom’s powers would not require any judicial order. There is no judge involved. Attentive readers will be struck by the similarity to the first version of Hadopi in France. Undoubtedly the positive feelings of FAPAV towards this scheme are driven by the same rationale that was behind Hadopi 1: accelerate the process of shutting down the alleged infringer by recourse to administrative rather than judicial mechanisms. Or to put it more simply, eliminate due process.
Amazingly for such a controversial system it is not being created by parliament, but rather through an administrative order on the part of Agcom, under the terms set out by the Romani decree. The proposed order was released in December and is subject to two months ‘public consultation’ prior to being enacted. A campaign has been started by an alliance of organizations including the consumer groups, lawyers, and business. In recent days they have launched a site to coordinate opposition to the measures.
In a separate decision Agcom has also decided that sites with a turnover of more than 100,000 euros per year based on user-generated content will be subjected to the same legislative requirements as TV stations – restrictions on the provision of content to minors, obligations to individuals defamed etc – and are to be treated as having responsibility for the content on their sites.
Most heavily impacted by this is youtube. In 2008 Mediaset initiated a case against youtube/google, demanding 500 million euros in damages of 500 million euros for copyright infringement of Mediaset programs on their video platforms. This resulted in two decisions against Google, in December 2009 and February 2010, regarding liability for hosting parts of the Italian version of Big Brother (Grande Fratello), a franchise owned in Italy by R.T.I.
Agcom’s decision regarding liability for user-generated content may be of significance in determining the eventual outcome, but this will also hinge on clarification of the more general liability of intermediaries in Italian law, currently a source of great confusion.
Rejected by a poorly attended chamber on 9th April, the government immediately vowed to reintroduce legislation against p2p users, a matter close to President Sarkozy’s heart. Consequently the Creation and Internet law (Hadopi) has been under discussion in the French Parliament, once again, since April 29th and will come to a vote on May 12th.
During the debates on the transposition of the EU Copyright Directive in 2005, known as DADVSI, clear differences in approach towards the filesharing phenomenon were manifest. Most of the UMP (conservative majority) saw the practice as a threat to be repressed through increased legal sanctions. The PS (soft left opposition), together with some centrist and UMP dissidents, preferred the imposition of a supplementary charge on broadband connections in exchange for a compulsory license giving the right to share media online. This would generate a revenue with which to compensate rightsholders, and would be distributed via existing collecting societies. To the government’s surprise an amendment inserting the compulsory license proposal garnered enough support to be carried in December 2005.
A second reading of the bill in March 2006 saw the amendment removed, and it was absent from the final text. But the debate did not disappear, and during the presidential election the two main candidates took opposing stances on the issue: Segolene Royal supporting the global license, Nicolas Sarkozy opposing it absolutely. He promised to establish a commission to review the effectiveness of DADVSI and propose additional measures, having already declared himself favourable to a system of graduated response – what has become known as “three strikes”.
Following his election, Sarkozy convened a sectoral summit at the Elysée, which led to a new set of proposals known as the Olivennes-Elysées accords in November 2007. Billed as a watershed agreement between ISPs, ‘creative artists’ and the state authorities, the proposals were presented as a means to provide a proportional deterrent to filesharing whilst expanding the availability of legitimate services. Hadopi is the deterrent, and is a pet-project of the French President. Its rejection was taken as a personal affront, and Sarkozy invited a group of sixty artists and producers to the Elysée on April 22nd to reassure them of his determination to get the law passed.
But in the interim, matters have been complicated on several fronts.
The first of these has legal significance: on Wednesday the European parliament voted in favour of the so-called Bono amendment 138/46 to the Telecoms Package (TP) (404 – 57, 171 abstentions). The wording is as follows:
“Applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a “prior ruling by the judicial authorities,” notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent.”
This limits the power to disconnect a user’s connection to procedures involving the judiciary, an element absent from the process Hadopi is intended to establish. This obligation will undermine the whole purpose of Hadopi, conceived as a rapid means to deal with the huge number of p2p users in an administrative fashion. Involvement of a judge in each case of disconnection will slow the process down massively and make it more costly. Indeed this was the very aim of amendment 138, proposed not coincidentally by two french euro MPs, Guy Bono and Daniel Cohn-Bendit, so as to preemptively emasculate Hadopi. This is the second time 138 has been been endorsed by a large majority in the European parliament. On the first occasion the French government later blocked the amendment in the Council of Ministers. Thus when the telecoms package returned to Parliament, it had been stripped from the text and need to be reinserted by another vote.
Reintegration of 138 poses two problems for the French government. If the package is ultimately approved and becomes law, then Hadopi will be incompatible with its provisions. If, alternatively, they attempt to block it again at European Council level (whose next TP meeting is June 12th), it will generate further delays for a TP which addresses economic interests far greater than those of entertainment companies.
Scandal at TF1: Sacked for Expressing an Opinion
Yesterday’s Liberation carried a detailed report on the dismissal of a TF1 (Télévision française 1) employee for having expressed his opposition to the law. TF1 is a private TV network, whose boss Martin Bouygues is a close friend of Sarkozy. Jérôme Bourreau-Guggenheim was employed there in the web innovation unit. In February he wrote a personal mail to his MP, Françoise de Panafieu (UMP), expressing his opposition to the law and outlining his reasons as well as explaining his involvement in the sector. At the beginning of March he was summoned by his boss at TF1 online, Arnaud Bosom, who read his letter back to him, verbatim. Bosom explained that the letter had been forwarded to TF1’s legal adviser, Jean-Michel Counillon, by the Ministry of Culture! In April he was summoned to a disciplinary meeting and was sacked on April 16th.
On April 16th, Jérôme Bourreau receives his letter of ‘dismissal for clear deviation from the strategy’ of TF1′. A shocking letter, which Liberation has a copy of: the group criticizes their employee for his mail to Panafieu, ‘in which he emphasizes, as an employee of the company, his hostility to the Creation and Internet law. And TF1 writes black on white ‘This correspondence reached us through the cabinet of the Ministry for Culture who forwarded it that same day to TF1.’
Bu the best bit is still to come, the human resources department writes: “We regard this attitude as an act of opposition to the strategy of the TF1 group (for whom) the adoption of this law is a high priority”. Before criticizing Bourreau for having ‘put the group in difficulty, his position having given the appearance of a lack of agreement between a ‘web’ manager and the official position as expressed by the company’s directors.”
Bourreau has started proceedings for unfair dismissal. Even supporters of Hadopi have been shocked at this event and a real scandal is brewing.
TF1 is heavily involved in DVD business. Under pressure over the sacking, they issued a communique where they explained that he had been dismissed for the ‘particularly radical positions, repeatedly expressed in public’ against Hadopi. Such positions ‘are contrary to the official declarations of the the TF1 Group, famously favorable to the law‘ and ‘incompatible with his responsibilities within e-TF1, a subsidiary of the group responsible also for anti-piracy work on the internet.’
But note that there is no further explanation as to the source of their employee’s letter. Nor is there any specification regarding his ‘public’ expressions of opinion, nor, specifically, any utterances made in a context which could be construed as antithetical to his role within TF1. In fact, this man’s opinions were apparently not at all public, until they fired him after receiving personal correspondence between him and his MP. The guy was sacked for having the wrong point of view. Full stop.
Minister Christine Albanel insists that she did not relay the information to TF1, and word is that there is hunt on for the snitch. Given that the whole framework of Hadopi is built around identifying liability by means of IP addresses, one hopes that it should not be too hard for them to find out who forwarded the mail from the Ministry.
‘Artists’ Against ‘Socialists’ (PS)
I’ve already chronicled elements of the war of words conducted through the media between pro (Tavernier et al) and anti Hadopi factions (Branco/Deneuve, Sci-fi writers). In the last two weeks there have been further salvos: first, another letter from the Tavernier coterie  published in Liberation and titled, “A Bad Movie at the Parliament”, accusing socialist deputies of trickery (!) against the law. Alleging that the bill’s opponents had no feasible alternative to current copyright protections, they railed against the compulsory license (licence globale) as unsuited to cinema; here, they say, monetization relies upon exclusivity, and freedom to share works online would erode that to the point of collapsing their markets. They continue:
“It goes without saying that the meager offering of the ‘creative contribution’ (current formulation of the compulsory license) will never attain the levels of current financing, which the cinema needs to remain diverse and creative.
Or else it’s another type of cultural society that they want to build, a society where support for diversity in cinema is drastically reduced, and where the most fragile works, those least expected by the market, will be cast-off. We refuse that utterly.”
PS deputies replied, describing Hadopi as a framework that sets artists against users, and which does so whilst attempting a generalised monitoring of online activity. Secondly they argued that the law would provide no additional financing for creation in a situation where filesharing is guaranteed to continue. According to estimates, their proposed alternative – the ‘creative contribution’ – would generate a billion euros a year to finance creation and conclude:
“The digital world makes possible one of the Left’s dreams: access to culture for the all. It necessitates a rethink of outdated economic models, their rules and financing. The legislative prohibitions being attempted can merely delay this change. Do we wish to submit or to channel it? Do we want to guarantee freedom for creators and for internet users, or must everyone end up losers? Do we want culture to be a commodity or something different?”
A few days later another recriminatory letter attacked the PS’s position, this one signed by five self-identified ‘leftwing artists’. The French press has paid some attention to these critics largely because cultural circles have been historically on the moderate left, a tendency consolidated during the presidency of Francois Mitterand in the 198s. On coming to power in 1981 he doubled the budget of the Ministry of Culture and appointed Jack Lang, at that time involved in theatre, as Minister. Little wonder then the PS won so many friends amongst artists in the 1980s – they were giving away money! Many of the artists in the pro-hadopi camp are, well… ageing, and the line of division in the cultural world appears more generational than anything else, although there are obviously exceptions.
The Future of the Cinema (Theatre)
Next it was the turn of independent cinema operators to oppose the law. Repeating many of the criticisms made by others, they go on to meditate on the role of theatres in all this:
“If cinemas still have a future, it is to be a place of exchange and sharing, and not a place where cinemagoers are placed under surveillance with infrared binoculars (to catch people shooting ‘cams’)… cinemas have a reason to exist and that is to be a place for collective experience, and to be fully embedded in neighborhood life.
How could we have lost the sense of what we do to the point of limiting individual rights and the dissemination of works in the name of preserving creation? By setting artists against their public, Hadopi empties of meaning the goal of all creation: to be seen, heard and shared.”
Elsewhere their concerns extend to the technology for digital delivery and projection of films, worrying that ISPs may attempt to monopolise these services, but hoping that they can take advantage of digitalization to diversify their programs.
Geeks in the Streets…and the Fiasco to Come…
Meanwhile street demonstrations against the law took place in French cities on April 25th, and in Paris as part of 1st May. Organized online, they’ve succeeded in mobilizing decent numbers.
Notwithstanding all this opposition, it is inevitable that this bill will be passed. Sarkozy is full of wrath at the lèse majesté of its previous rejection, and the process now seems beyond rational analysis. The atmosphere was best captured by an anonymous MP from Sarkozy’s UMP, who stated:
“We’re headed towards a fiasco, but we’re obliged to go there.”
(1) see La Quadrature du Net for more detail.Back to post 1
(2) Somewhat surprising to find Costa-Gavras on the list; one time correspondent of the Uruguayan Tupamaro revolutionaries depicted in State of Siege, and director of Z, a compelling account of Greece just prior to the regime of the Colonels.
The full list of signatories: Jean-Jacques Annaud, Patrick Braoudé, Christian Carion, Alain Corneau, Dante Desarthe, Jacques Fansten, Costa-Gavras, Laurent Heynemann, Pierre Jolivet, Gérard Jugnot, Philippe Lioret, Radu Mihaileanu, Claude Miller, Jean-Paul Rappeneau, Coline Serreau, Bertrand Tavernier, Pascal Thomas, Danièle Thompson, Nadine Trintignant, Bertrand van Effenterre, Christian Vincent et Roschdy Zem. Back to post 2
On Tuesday the Legal Affairs Committee of the European Parliament voted on the various amendments proposed to the Intellectual Property Enforcement Directive. The crux of these changes is that patents have (as anticipated) been excluded from the scope of the directive and key terms such as “commercial scale” have been left undefined, presumably based on the idea that local courts and eventually the European Court of Justice will resolve that problem. Such a reckless ambivalence towards establishing the legal rules for what will be criminal liability is completely unacceptable, and one hopes that at the very least this will be dealt with during the rest of the legislative process. Of course it would be preferable if the whole directive was to be abandoned – there has been no demonstration of its necessity – but once the bureaucrats invest their energy in developing a proposal like this they are loathe to change their minds as it does not make for good CV material. Likewise the German Presidency of the EU is enthusiastic to rush it through, so that they can have something on their results sheet once the six months is up, but that may be overly ambitious. In any case, indications are that the plenary vote in the European Parliament is taking place on April 25th. If you’re concerned about this, please support the excellent work being done both by the EFF’s new European Office and the stalwarts at the Foundation for a Free Information Infrastructure. They’re out there for us, so dig into your pockets and circulate their materials for them.
More analysis later.
http://www.kriptopolis.org/piratas-corporativos (in spanish)
Thanks to participants in the IPRED2 list for compiling links to the coverage.
Another directive, COD/2005/0260, is currently snaking its way through the EU legislative process. As always, the Commission is using it as an opportunity to showcase snappy phraseology, as demonstrated by the title: “Television broadcasting services: simplify the regulatory framework for broadcasting or linear services, introduce minimum rules for non-linear audiovisual media services (amend. direct. 89/552/EEC, règl. 2006/2004/EC)”. You’ll need the help of a jargon-killer, or perhaps the the wikipage created by the Open Rights Group (UK).
Television Without Frontiers (TWF) was passed in 1989 and set out rules governing television broadcasts in the single market. Matters covered included:
- mandatory quotas for european-produced content
- mandatory quota of 10% transmission time/budget for independent producers
- limitations of time alloted to advertising (15% of the day, 20% maximum in any hour)
- protection for children
- restrictions on alcohol advertisements.
At the heart of the directive lies the country of origin principle. This meant that a broadcasteer needed to comply with the law as set out only in their jursidiction – they did not have to tailor their products for the various national regimes. How to determine the location of a station’s ‘origin’ was clarified in a 1997 amendment stipulating that for the these purposes it would the country wher the channel had its main office.That amendment also enable national legislators to require the free over air broadcasting of cultural events considered to be of vital natioanl importance – thanks to this clasue we get access to important sporting events which would otherwise be monopolised by the pay-per-view merchants.
The current proposal will relax controls on non-linear on-demand style services, and introduce new elements as well as amendments to the existing reglation:
- product placement will be brought under an EU wide regime
- the rules on advertising interruptions will be relaxed
- extension of country of origin principle to non-linear services
- end of focus on tv transmission; the effects of the directive will now be extended to the delivery of media over devices including mobile phones and the net.
The current amendment process kicked off in 2005. The novelty in the latest version is the attempt to cover all audio-visual services and abandon the technology specific language that treated the boob-tube as the means by which people would get their eye-candy forever. Having gone tech-neutral, the key distinction determining the type and extent of regulation is whether you are like a traditional broadcaster – pushing fixed-schedule content at mass audiences – or non-linear where the user can pull down material she selects.
- In October the blogosphere eruptedmomentarily over the directive based on the concern that the new law would be applied to the non-commercial and user-generated sphere of content. That ambiguity has apparently now been eliminated and the directive will only apply to clearly commerical operations.
- In Britain everyone seemed to be against the directive, including Ofcom, former minister James Purnell MP and the Digital Content Forum. The gebneral thrust of these objections is that the directive is premature given that the market in mobile and new delivered content is in its infancy, and that deregulation would be preferable.
- The European Consumersorganization, BEUC, is (a) opposing the parts of the directive relaxing restrictions on advertising (b) fighting the sanifiucation of product placement and (c) lobbying to ban the marketing of foods high in fat, sugar and salt to kids.
The Commission original proposal; another version annotated with the Parliament’s amendments can be seen here, whereas you can track the legislative process at the Observatory. The Audiovisual and media Policies unit at the commission has a page providing something of an overview of the process so far. Basically the Parliamnet approved it on a first reading, now it will return to the Council before heading back to the prliament for a second reading some time this year.
The Open Society institute has just published a report on User rights in European copyright law which skteches the differences in rights across the union and makes recommendations for best practices. project leads were Ian Brown (Foundation for Internet policy Research) and Urs Gasser (Harvard).
Intellectual property law has always varied widely across jursidictions, at least in the detail, for some of idea of the scope check out Bernt Hugenholz’s Fierce Creatures. Copyright Exemptions: Towards Extinction?’, from 1997 (you should also check out the Institute for Information Law’s intellectual property page). Even though copyright IP has been the subject of at least eleven directives since 1990, these have generally installed a ‘floor’ of rights which must be granted to the owner, but have not harmonised user rights, so national variations are still important.
The report compares implentation of the EUCD in the various member states, extracting best practices under four rubrics, each one with several sub-sections:
anti-circumvention provisions – (a) scope (b) limitations (c) sanctions and remedies;
peer collaboration- (a) private copying exception (b) file-sharing;
universal access – (a) teaching exceptions (b) archives and libraries (c) disabled users;
political & cultural participation- (a) reporting on events (b) quotation/incidental inclusion (c) political speeches (4) parody/pastiche/’mash-up’
The various country reports and other documents are available on the wiki for the project which they characterise as a work in progress.
Two years ago the first Intellectual Property Rights Enforcement Directive (IPRED) was chaperoned through Europe quietly, too quietly, until being passed under the Irish Presidency in 2004. Initially mandating criminal sanctions for copyright infringement – a ‘bunker-buster’ deterrent for the pesky p2p fiends – the directive had to be stripped of this element on a technicality. Legislation containing criminal sanctions requires a legal basis in the third pillar procedure relating to police and judicial cooperation, whereas IPRED was initiated under a first pillar procedure.
Scarcely a month after the Directive having been passed EU officials were already declaring their intention to proceed with further legislation so as to resucitate the lost criminal sanctions, and the official announcement arrived in autumn of last year. Early drafts of IPRED 2 proposed criminal sanctions for all forms of IP infringement and immediately drew scathing criticism. Scarcely surprising when one considers patent litigation is becoming an ever more popular business model. As a result patent infringements have now been removed from IPRED’s criminal net which will now cover copyright ‘piracy’ and trademark infringement. Fortunately the directive has a long way to go yet, so further amendments can be expected.
Documents (Regularly Updated)
1. Here is the Amended Proposal from the Commission that makes the changes required by the European Court of Justice’s judgment of 13 September 2005 (Case C 176/03 Commission v Council). This is the document released in April of this year:
2. There is a Procedure page where you can track the progress of the directive; the next significant dates are at the European Parliament in late january and february:
(a) questioning the legal basis of the driective
(b) opposing the use of criminal sanctions in patent law and pointing out that such penalties already exist for serious copyright and trademark infringements
(c) criticizing the vagueness of the language regarding commerical scale
(d) doubting the practical effectiveness of criminal prosecutions where proving intent is key.
4. The Max Planck Institute in Munich, not exactly a hive of anti-proprietary activity, have also produced a highly critical analysis of the draft directive. In addition to echoing some of the remarks made by the Law Society –
– they question whether failure to harmonize with regard to sanctions could lead to a distortion in trade between member states (problem which a.95 is supposed to counter) and specifically differentiate the circumstances in Ip law from those relevant to criminal environmental law (where differeneces in regulation will give on firm cost advantages over another)
– that it is too soon even to assess the effects of the previous IPRED from 2004
– that harmonization is required anyway by A.61 of TRIPS and thus further steps are otiose
– that in practice criminal provisions are of marginal importance, even in countries where they are well developed (including wrt patent law) such as germany
– they remind that there is a countervailing public interest in intellectual property which means that not all benefits should be reserved to owners and not all violations punished by maximalist sanctions
– for criminal sanctions to be justified the violation must result in a product identical to that copied, made with a commercial purpose, and accompanied with intent.
These substantive provisions of the proposed instrument should be discussed on the basis
5. July 3, 2006: A letter from the two houses of the States-General in the Netherlands, challenging the legality of the Directive on the basis of having failed the tests of subsidiarity and proportionality.
6. 22 September 2006: Via Axel Horn’s blog, I came across the report of the (shadowy!) Article 36 committee report (PDF) on the draft directive here.
7. October 5/6 : A Council press release provides some interesting information, containing as it does a statement on the need for consideration of the need for criminal snactions and noting that such an analysis should be made within an evaluation of the effects of IPRED 1. In addition they state that such criminal snactions as are introduced should be within the:
“limitation of its scope to intellectual property rights harmonised in Community legislation, in line with the principles stated in the conclusions of the informal JHA meeting in Vienna on 13 and 14 January 2006.”
Presumably that would mean that patents are out.
8. 7 November 2006: You can find the Zingaretti report (PDF) (Committee on Legal Affairs) recommending the exclusion of patent matters from the scope of any criminal sanctions here. On the other hand it is proposed to extend the scope to Directive 98/84/EC on Conditional Access. In Article 2 a series of defintions are added so as to clarify the scope of the rights covered and the meaning of ‘commercial scale’, whilst individual users (presumably p2p users) are expressly excluded:
“any infringement of an intellectual property right committed to obtain direct or indirect economic or commercial advantage; this would normally exclude acts carried out by private users for personal and non-commercial purposes;”
of a limitation of its scope to intellectual property rights harmonised in Community
legislation, in line with the principles stated in the conclusions of the informal JHA
meeting in Vienna on 13 and 14 January 2006.
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