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Deutsch: EP-Debatten zu internationalen Fluggastdatenabkommen
At the European Parliament (EP) plenary session on Monday 4 July 2011, a debate took place regarding the current development of passenger name records (PNR) agreements with the United States, Canada and Australia. The debate attracted a very large number of speakers.
Opening the debate, Cornelia Ernst (GUE/NGL, Germany) raised broad concerns regarding necessity, proportionality and the need for a ban on profiling. She opposed the Australian agreement because exported data will fall under Australian law, contrary to the Treaty. She bemoaned the absence of a definition of profiling and asked why this still was not available.
Jan Albrecht (Greens/EFA, Germany) said that the Parliament had been repeatedly clear that it opposed profiling and data mining. However, instead of respecting this position, the Commission gave a blank cheque to the countries it was negotiating with. He said that the Parliament had asked for a legal opinion and for a data protection impact assessment and got nothing. He accused the Commissioner of hiding under a blanket like a scared child faced with these difficulties and that this was embarrassing.
Birgit Sippel (S+D, Germany) expressed surprise at the current state of play. She said that the issues are not new and not alone are we not moving forward, but we are going backwards instead. She said that the proposed Australia agreement is in trouble and she'd like to hope that this is due to Member States realising that all ends do not justify all means. You cannot hold data on millions of citizens for years on the basis that it might be used for something that might be useful - this is what the EU/US deal currently says and this is unacceptable.
Timothy Kirkhope (ECR, UK) (a member of the larger political party in the UK government coalition which promised less needless data collection when it took over, before strongly supporting PNR) said there are still issues to be resolved. Nonetheless, it is important to swiftly adopt the agreements, while gaining as much information as possible from the Commission. The necessity and proportionality of the approach have long been obvious, he said, inter alia for fighting terrorism and rape (sic). He described disagreements on how long data should be stored as "ideological". We have to move forward and do our jobs, he concluded.
Sophie In't Veld (ALDE, Netherlands) said that long term storage is the biggest problem. Storing data on innocent citizens in the vague hope that it might be useful sometime is not proportionate.
Axel Voss (EPP, Germany) considered that it is important to have security and freedom in a right balance and that there are different types of profiling and some are more balanced than others.
Cecilia Malmström said the US/Canada/Australia agreements are at an advanced stage with important decisions pending. Once these are finished a multilateral approach will be followed rather than continuing with the current country-by-country approach.
Most of her subsequent answer was a repetition of the explanatory memorandum of the EU PNR Directive proposal which was launched in February. On necessity, she said that the impact assessment pointed out that PNR is used by a growing number of countries to fight terrorism. PNR can help identify unknown people on the basis of travel patterns of known groups like human traffickers - omitting to point out how data such as what the human traffickers had for dinner would be useful. This data has been useful for fighting drug smuggling and human trafficking. However, strong data protection guarantees are necessary. There is no definition of profiling, but it is understood as automated processing. She explained that there are three different uses for PNR data - reactive, real time and pro-active. Only real-time processing could be considered profiling but the EU/Australia requires human intervention and they hope to add this to EU/Australia and EU/US - so it is not fully automated.
EU/Australia respects the legal framework and has strong purpose limitation and data protection. She said that several EU countries entered agreements as parts of the Visa Waiver Programme which were to form the basis of data exchange. These are not PNR agreements. She acknowledged the internal Commission assessment of the legality of the EU/US agreement and said that "a small number" of aspects are being discussed with the US with a view to improvement. She stressed that agreements are already in place and the current exercise is to improve them.
In the meantime, the European civil society has started a PNR Postcard campaign - to write postcards during your holidays to the Members of the European Parliament and ask them to vote against the PNR-Agreements. See more details in the Recommended Action of this EDRi-gram.
EU PNR Directive proposal
http://ec.europa.eu/home-affairs/news/intro/docs/com_2011_32_en.pdf
European Commission's Legal Service says EU-USA PNR agreement is "not
compatible with fundamental rights"
http://www.statewatch.org/news/2011/jun/03eu-us-pnr-com-ls.htm
Air passenger data plans in US-EU agreement are illegal, say lawyers
(20.06.2011)
http://www.guardian.co.uk/world/2011/jun/20/air-passenger-data-plans-i...
Papers please!
http://www.papersplease.org/
No PNR (mostly in German)
http://www.nopnr.org/
EDRi-gram: Recommended Action: PNR Postcard Campaign(13.07.2011)
http://www.edri.org/edrigram/number9.14/action-pnr-postcard-campaign
(Contribution by Joe McNamee - EDRi)
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Deutsch: Markenschutz-Verfechter erringen juristischen Sieg in Sachen Providerh...
On 12 July 2011, the European Court of Justice ruled on the liability of online marketplaces for trademark infringements by users and the scope of the hosting safe harbour of the E-Commerce Directive. The case results from legal proceedings between L'Oréal and eBay in the UK. The ECJ concluded that the safe harbour for hosting providers only applies to third party data processing that is merely technical and automated, as well as passive and neutral. In the Court's view, an online market place is not passive enough if "it provides assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting them." Although the actual liability of eBay will have to be established by the referring Court in the United Kingdom, the answers of the Court are a victory for proponents of stricter online trademark enforcement.
L'Oréal's legal action not only concerns the sale of counterfeit products under its trademark on eBay. It is more generally aimed at preventing the use of its trademark on eBay for the sale of its own products without its permission. In this context, the ECJ agrees with L'Oréal that EU trademark law forbids the sale by third parties without permission of free samples on an online marketplace.
The significance and potential negative impact of the ruling for the scope of the safe harbour for intermediaries goes beyond the protection of trademarks online. The ruling concerns the so-called hosting safe harbour in article 14 of the E-Commerce Directive for intermediary services that store third party information and keep it available online. This provision protects such services against liability under the condition that they remove or disable access once knowledge of illegal activity or information is obtained. While it applies to the 'classic' hosting activities of ISPs, a range of other online services, such as online marketplaces, user generated content sites, social networking sites and search engines have used it as a shield against liability for the potential unlawful activities of their users.
Building on its decision in the case between Google and Louis Vuitton, the ECJ ruled that the safe harbour does not apply "where the service provider, instead of confining itself to providing that service neutrally by a merely technical and automatic processing of the data provided by its customers, plays an active role of such a kind as to give it knowledge of, or control over, those data." These additional conditions for the safe harbour to apply come directly from recital 42 from the preamble of the E-Commerce Directive. Unfortunately, the Court ignores the explanation of Advocate General Jääskinen that this recital clearly concerns mere conduit and proxy caching activity. It also ignores his warning against the use of these additional conditions since "the objectives of the Directive 2000/31 would be seriously endangered and called into question".
The Court also had to answer the question regarding what kind of legal measures could be imposed on eBay to stop or prevent trademark infringement from taking place on its service. The Court answered that EU countries are not only allowed but actually have to ensure that their courts can order the operator of an online marketplace to take measures "which contribute, not only to bringing to an end infringements (...), but also to preventing further infringements (...)". While not answering the question of what kind of court orders would be able to fulfil these criteria, the Court adds that "(t)hose injunctions must be effective, proportionate, and dissuasive and must not create barriers to legitimate trade."
Court of Justice of the European Union, Press Release No 69/11,
Luxembourg, 12 July 2011, Judgment in Case C-324/09 L'Oréal v eBay
http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-07/cp1100...
European Court of Justice 12 July 2011, C 324/09 (L'Oréal and Others v eBay)
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&newform=newf...
Court of Justice of the European Union, Press Release No 119/10,
Luxembourg, 9 December 2010, Advocate General's Opinion in Case C-324/09
(L'Oréal and others v eBay)
http://curia.europa.eu/jcms/upload/docs/application/pdf/2010-12/cp1001...
(Contribution by Joris van Hoboken - Institute for Information Law, The Netherlands)
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Deutsch: Müssen wir eine unkorrekte Vorratsdaten-Richtlinie umsetzen?
While the future of data retention seems unclear, in Germany conservative MPs are pressing the Justice Ministry to bring the legislation in line with the current text of the directive, while liberals and greens tend towards a restriction of the information storage.
In March 2010, the German Constitutional Court ruled as void the national law transposing the directive which was proposing the storage of data for six months and ordered the destruction of the already collected data. Now, the Justice Minister has again been asked to "do her duty" and draft legislation in line with the European directive. Peter Altmaier, a parliamentary leader in the CDU, believes that a way must be found to meet the conditions set by both the EU and the constitutional court.
But the directive is considered to be flawed even by German MEPs: "The Data Retention Directive was contentious when it passed five years ago and it remains so today", said the liberal German MEP Alexander Alvaro who believes that, while the German law enforcement and government agencies need the "necessary tools and resources to stop and deter acts of terrorism, the EU must respect the privacy of its citizens."
He drew attention to the recent European Commission report that has underlined privacy concerns and revealed flawed, inconsistent data retention practices which raise serious questions as to the effectiveness , necessity and proportionality of the law.
This assessment is accurately proved by a recent document summarising the position of the parties at the European Court of Justice in the Bonnier case (C-461/10). In its opinion, the Commission seems to argue that the telecommunication data retained under the safeguard that it is retained only for the investigation and prosecution of serious crime can be used without problems in order to investigate intellectual property-related offences, that might not even be crimes, let alone serious crimes. The text also implies that the retained data may be given directly to the copyright owners in a civil lawsuit.
With the "old" arguments for a data retention directive, a new leaked document from UK, Ireland and France is arguing to the other Member States that data retention is very necessary for law enforcement and the Directive should remain unchanged. Moreover, the documents suggest that anything less than a 12 month retention period is unacceptable.
Most of the operational examples that claim to provide a "qualitative demonstration" of the data retained dp not seem to be relevant for data retention, with the data being obtained directly from the victims and other people or too new, therefore accessible directly from electronic communications operators with a specific judicial warrant, and not retained based on data retention requirements.
The same UK police force is now being dragged in the News of the World scandal, with allegations that senior journalists from the said newspaper used to pay some police officers to find celebrities or other people they wanted to write about by tracking their mobile phone signal.
The Data Retention Directive Is flawed for Europe (updated 8.07.2011) http://www.euractiv.com/en/infosociety/data-retention-directive-flawed...
German MPs pressure minister on data retention (7.07.2011)
http://www.forexyard.com/en/news/German-MPs-pressure-minister-on-data-...
European Court of Justice - Hearing on Bonnier case (only in Swedish)
http://www.edri.org/files/C461-10-rapport.pdf
Leak document of data retention opinion of UK, France and Ireland
http://www.edri.org/files/Data-retention-opinion-Uk-fr-Ie.pdf
News of the World accused of paying police to track stars' phones (12.07.2011)
http://www.guardian.co.uk/media/2011/jul/12/news-of-the-world-pinging
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Deutsch: OSZE: Netzzugang als Menschenrecht
According to a report issued by the OSCE (Organization for Security and Co-operation in Europe) on 8 July 2011, the Internet should remain free and access to the Internet should be considered a human right.
The report, based on data received from OSCE participating states and on the responses to a questionnaire sent in September 2010, presents the conclusions of the first comprehensive research on Internet content regulation in the OSCE region, having covered the legal provisions and practices related to freedom of expression, the free flow of information and media pluralism on the Internet.
The report shows concern related to the general trend in Europe towards a regulated, controlled and censored Internet and the level of blocking practices encountered in the OSCE region. "Restrictions to freedom of expression must comply with international norms. No compliance could lead to censorship," said Yaman Akdeniz, the author of the report.
The study shows that filtering and blocking measures are in most cases incompatible with freedom of expression and the free flow of information. "Legislation in many countries does not recognize that freedom of expression and freedom of the media equally apply to Internet as a modern means of exercising these rights and in some of our states, 'extremism', terrorist propaganda, harmful content and hate speech are vaguely defined and may be widely interpreted to ban speech types that Internet users may not deem illegal," said Dunja Mijatovic, OSCE's chief media freedom observer, who presented the report.
According to the study, 20 countries, mostly from Eastern Europe and Central Asia, prohibit so-called extreme speech on the internet with the purpose to prevent criticism of the government, where several countries allow for complete suspension of Internet services at times of war, in a state of emergency and in response to other security threats.
The report also warns against the measures already adopted by France and planned in the UK, to deny Internet access for users who have allegedly violated copyright rules.
In the OSCE's view, access to the Internet should be considered a fundamental human right and respected as much as freedom of expression. "Everyone should have a right to participate in the information society and states have a responsibility to ensure citizens' access to the Internet is guaranteed," says the report.
Mijatovic acknowledged that some governments recognise the Internet as a human right and encouraged others to support this sentiment:"We will use the study as an advocacy tool to promote speech-friendly Internet regulation in the OSCE participating States," Mijatovic said.
OSCE Press Release - Internet blocking practices a concern, access is a
human right, says OSCE media freedom representative at launch of OSCE-wide
study (8.07.2011)
http://www.osce.org/fom/80735
OSCE Report - Freedom of Expression on the Internet - Study of legal
provisions and practices related to freedom of expression, the free flow of
information and media pluralism on the Internet in OSCE participating States
(8.07.2011)
http://www.osce.org/fom/80723
OSCE warns of Europe-wide trend to restrict internet content(8.07.2011)
http://www.monstersandcritics.com/tech/news/article_1650095.php/OSCE-w...
Internet access a fundamental human right: OSCE (9.07.2011)
http://www.google.com/hostednews/afp/article/ALeqM5hPpLN3fP1YscRUuO6Qh...
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Deutsch: Netzsperren in Italien gestoppt - vorerst!
After the reaction of several civil liberties activists, including Reporters Without Borders, the Italian telecommunication agency AGCOM decided to review its plans to pass a resolution giving it the power to block websites and remove online content allegedly violating copyright, without referring to a judge.
Yet, the risk is not yet removed, with the regulations now in public debate. The draft revised version of the regulations for "copyright protection on electronic communications networks", issued on 6 July 2011, still seem to please the newspaper editors, but also the film and television industry by laying down rules applicable to the large communication intermediaries.
The draft has in view a "notice and take down" stage in which the website owners can remove the content considered to be infringing copyright within four days after becoming aware of the alleged infringement. In case the notice and take-down stage is not considered satisfactory by either the copyright holder or the website owner, they can appeal the agency which, "following a clear and transparent cross-examination phase, will issue - within the following 10 days (extended by up to an additional 15) - an order of selective removal of illegal content or, respectively, of their recovery, depending on the requests."
The new rules still provide that upon receipt of a report of suspected copyright infringement, the Authority opens the proceedings and sends invitations to "the site operator or service provider media" to defend themselves by a response that needs to be sent by certified mail within 48 hours. After that phase, the competent Directorate of the Authority may order the operator of the site and/or audiovisual media service provider to remove the content (irrespective of whether this is hosted in Italy and abroad as it is explained by Punto Informatico).
In case an operator of a site does not comply with the measure taken by the Authority, the latter may impose a penalty of up to 250 000 Euro for failing to remove the allegedly infringing content.
The draft will be the subject of public consultation for 60 days.
Italian agency to review Internet filtering project (7.07.2011)
http://en.rsf.org/italy-italian-agency-poised-to-assume-05-07-2011,405...
AGCom puts a break to censorship but we still have to stop ACTA (only in
Italian, 7.07.2011)
http://blog.tntvillage.scambioetico.org/?p=8136
Kill the Internet is still a risk (only in Italian, 8.07.2011)
http://punto-informatico.it/3211826/PI/Commenti/ammazza-internet-ancor...
Copyright: AGCOM issues a draft Regulation and starts a 60 days public
consultation (6.07.2011)
http://www.agcom.it/Default.aspx?message=visualizzadocument&DocID=...
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Deutsch: Niederländischer Senat "enttäuscht" über Evaluierung der ...
The same week the Dutch Senate approved a long-anticipated shortening of mandatory retention periods for internet data to six months, it published its correspondence with the Dutch Minister of Security and Justice on the Data Retention Directive evaluation by the European Commission. In a 31 May 2011 letter to the Minister, the Senate considers the evaluation report "unsatisfying", "unconvincing" and "disappointing" and explicitly asks the Minister whether the Directive should be withdrawn.
Most notably, the Senate concludes that the report does not adequately demonstrate the necessity and proportionality of the Directive (2006/46/EC) and that it fails to prove a "pressing social need" for the Directive, as the E-Privacy Directive (2002/58/EC) already provides for storage of certain traffic data for billing and marketing purposes. The Senate also voiced reservations on its effectiveness. All these criteria - necessity, proportionality, pressing social need, effectiveness - have to be met in order to meet the safeguards of the European Convention on Human Rights (ECHR).
The Senate also criticises the report for "too easily sidestepping" several Constitutional Court cases across the European Union, in which implementation laws were ruled unconstitutional or the principle of blanket data retention itself was deemed in breach of the ECHR. And it points out that the Dutch submission to the evaluation is particularly unsatisfying and "methodologically questionable". Finally, it reiterates the fact that historic traffic data were already available after the London and Madrid bombings, without a Directive mandating blanket retention schemes being in place. On the basis of its analysis, the Senate asks the Minister whether the withdrawal of the Directive should be considered.
The Minister Ivo Opstelten responded in a 27 June letter that the Dutch government still thinks data retention "plays an important role in the law enforcement effort", but he conveniently delays any further explanation until the European Commission proposes changes to the Directive. Interestingly, Mr. Opstelten suggests that the Senate write a letter directly to the Commission and/or Parliament to voice its concerns.
Since 2004, the Senate has been critical of data retention and hesitant to implement the Directive in Dutch law in 2009. But in this recently published letter, the Senate takes an unprecedented explicit and unanimous stance. As The Netherlands lacks a Constitutional Court to definitely rule on the constitutionality of laws, the Senate has an important say in whether Dutch legislation breaches constitutional safeguards. Its critique of the evaluation report could signal that it will, in due course, call upon the government to take a critical stance on amending or annulling the Directive during negotiations in the Council.
In anticipation of the Commission to hide the numerous failures of the Directive by omission and dissemblance, EDRi produced a "shadow report" on 17 April 2011, providing a more accurate assessment of the Directive, using the Commission's own methodology.
Correspondence between the Dutch Minister of Security and Justice and
the Senate on the Data Retention Directive evaluation by the European
Commission (only in Dutch, 29.06.2011)
https://zoek.officielebekendmakingen.nl/kst-32797-A.html
Official data retention evaluation report (18.04.2011)
http://ec.europa.eu/commission_2010-2014/malmstrom/archive/20110418_da...
EDRi's Shadow report on the evaluation (PDF) (17.04.2011)
http://www.edri.org/files/shadow_drd_report_110417.pdf
(Contribution by Axel Arnbak - EDRi-member Bits of Freedom)
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Deutsch: Schöne Aussichten für britische Netzsperren nach amerikanischem Vorb...
During his speech at the Intellect Consumer Electronics conference on 5 July 2011, UK culture minister Ed Vaizey announced that a movement in the States for a voluntary filtering by ISPs would probably bring up changes in UK as well.
"A voluntary agreement may come out of the US and if that does happen it could be a game-changer," said the minister who added: "If people are streaming live football without permission we should look at ways we can stop them. People have the right to earn money from content they create."
Until now, UK ISPs have shown reluctance to Internet filtering and following a discussion with the main ISPs, Vaizey considered their attitude rather "odd", especially that of BT and TalkTalk, which have failed in their legal challenge to the Digital Economy Act (DEA). The DEA is aimed at preventing piracy via peer-to-peer file-sharing but also has provisions to block access to some websites and allows content providers to apply for an injunction against ISPs that do not restrict access to sites with alleged illegal content.
In a meeting with EDRi-member ORG on 6 July 2011, Ed Vaizey recognised the importance of softer measures and mentioned the IWF (Internet Watch Foundation) as an acceptable form of website blocking.
What the Minister fails to acknowledge is that the industry and copyright holders push for a controlled censored environment through Internet blocking.
For instance, the Motion Picture Association has just taken BT, the largest UK ISP, to court over linking to members-only index site Newzbin, asking for the blocking of the site.
The MPA is challenging BT under Section 97A of the Copyright, Designs and Patents Act which gives the High Court the power to grant an injunction against a service provider if it had "actual knowledge" that someone has used its service to infringe copyright. The respective section implements the requirements of the EU Copyright Directive stating that countries must ensure that copyright holders have the right to apply for injunctions against intermediaries, such as ISPs, whose services are used to infringe copyright.
Also, the DEA requires Ofcom, the UK media regulator, to write new rules governing copyright infringements over the Internet. In 2010 Ofcom drafted plans to force the ISPs to hand over to copyright holders details of customers who were illegally sharing copyrighted material in order to give the copyright holders the possibility to take action. In case the Government enacts this plan, ISPs might find themselves in the position to cut their users' internet access if they are found to be illegally downloading copyrighted material.
According to a recently leaked report, copyright holders will present proposals to set up a voluntary code to deal with online copyright infringement, including the suggestion that an "expert body" should decide if websites should be blocked and ask the courts to issue injunctions ordering ISPs to prevent their customers from visiting the infringing sites.
UK looks to US on piracy blocking (5.07.2011)
http://www.bbc.co.uk/news/technology-14035502
Meeting with Ed Vaizey: website blocking and censorship (7.07.2011)
http://www.openrightsgroup.org/blog/2011/meeting-with-ed-vaizey
Film industry asks court to force BT to cut off access to alleged
copyright-infringing website (30.06.2011)
http://www.out-law.com/page-12039
EFF: The Content Industry and ISPs Announce a "Common Framework for
Copyright Alerts": What Does it Mean for Users? (7.07.2011)
https://www.eff.org/deeplinks/2011/07/content-industry-and-isps-announ...
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Deutsch: Hearing im EU-Parlament: "Urheberrecht und Geistiges Eigentum im ...
The Socialists and Democrats Group in the European Parliament held a hearing on Copyright and Intellectual Property in the Digital Age" in the European Parliament (EP) on 29 and 30 June 2011. The event was organised in order to permit a balanced and calm discussion ahead of the launch of a range of intellectual property proposals from the European Commission over the coming months. The event was chaired by Maria Badia i Cutchet MEP (Spain) and Luigi Berlinguer (Italy) and was well attended by parliamentarians.
The first speaker was Malcolm Hutty from the European ISP Association (EuroISPA). He expressed concern not just at the amount of copyright infringements, but also at the fact that the legal framework has led to a whole generation growing up with a lack of respect for the law. He argued against repressive measures such as "three strikes" and blocking/filtering - both of which are contrary to existing policy priorities such as promoting access and consumer protection. He called for a move away from repression-by-default and towards measures to create respect for the law - and a more respectable law which allows reasonable exceptions, reasonable pricing and reasonable innovation. He used an example a DVD rental service which allowed online streaming of the product, using exactly the same payment model for rightholders as an offline DVD rental service but which was nonetheless objected to by rightholder groups simply because it was new.
He was followed by Jean Bergevin, head of the "fight against counterfeiting and piracy" unit of DG Markt of the European Commission. He stressed the global, fast-moving nature of the Internet, which is an integral part of all content distribution and which offers key opportunities to exploit niche markets, particularly thorough the simplification of the supply chain. He questioned whether there has been enough innovation and whether the cross-border delivery of content is matching the increased mobility and linguistic skills of citizens. He stressed the obligation under the Lisbon Treaty to ensure that any proposals fully respect the Charter of Fundamental Rights. He said that any new proposals must ensure that supply of content is maximised and gave the examples of the proposals of the Commission on orphan works, collective rights management and cross-border licensing as initiatives aiming to achieve this goal. Regarding the IPR Enforcement Directive, the aim should be to ensure that all rightsholders, however small, can enforce their rights. He said that existing business models are threatened and this is causing resistance. On the other hand, consumers need to move away from the concept of "free," although affordable access is necessary. He concluded by stating that a political will for modernisation was necessary.
The final presentation on the first day was from the Spanish academic Enrique Dans, who had a stunning presentation on the need to update thinking on intellectual property and access to audiovisual material. He described the resistance to every form of new content distribution throughout history, from the printing press to sheet music to audio cassettes to video cassette recorders - except CDs, which were cheaper to produce and could be sold for higher prices. He said there is no way to stop technology and technology is undermining industries in the middle of the distribution chain. Physical copies are no longer needed , marketing happens via social media, talent is found increasingly via viral means. As a result, the middlemen are no longer adding value and are demanding subsidies, such as via equipment levies - in Spain the levy on a CD is higher than the cost of the CD itself. Consumers are tired of being treated as criminals for sharing culture. Copyright is a dead horse - it is time to stop trying to legislate the horse back to life. "Piracy" is not lowest where there is the most enforcement - it is lowest where legal content is the most easily available.
On the second day, the discussion was divided into two sections. The first was "jobs and intellectual property - the way forward" while the second was "the role of the legislator - in defence of what? Protection of intellectual property, privacy and data"
A. Jobs and intellectual property
Johannes Studinger from the UNI MEI trade union, representing a wide range of workers, mentioned the history of the Socialists and Democrats in supporting workers and trades unions. He described how trades unions negotiate collective agreements with producers, which are important due to the instability of work in the media sector. Such agreements provide stability for workers and guarantee remuneration where works are re-used. This money is also used for health payments. Enforcement is important because if there are infringements, these collective agreements are less easy to sustain.
Smari McCarthy from the International Modern Media Initiative (IMMI) said that copyright was becoming a primary tool for censorship but it was a very contentious issue and the need was to get to a better model that benefited everybody. He said that the phrase "intellectual property" was a misnomer for a temporary property right. It is also incorrect to argue that copyright is needed to ensure creation - creators only receive a tiny percentage of income, the record companies get the vast majority of the revenue.
This approach is leading creators to turn to creative commons models and earning money from associated merchandising. Vested interests, particularly with regard to collective licensing, are holding back development. In the last decade, we have come up with more and more enforcement that creates a chilling effect and extra-judicial powers for intermediaries. These measures are circumvented and ineffective. We need to focus on promoting education and creation in policy development.
B. The role of the legislator
Christophe Geiger from the University of Strasbourg said that law was about social order and this was achieved by a balance between competing interests. This balance is what legislators must achieve. Citizens use and reuse cultural material and access to culture must be taken into account. We need to ensure just payment for creators and to ensure access and reuse. What is a "balance"? We need to focus on measures to increase access and we need to make sure that these are efficient - an observatory body for access along the lines of the observatory for counterfeiting would be good. Allowing access does not mean that access should be free. Legal use of works should also be looked at, with single window systems - it makes no sense to have 27 different licensing systems. Exceptions and limitations are key tools for access, particular for non-commercial uses, such as research and education. We also need an exception for creative purposes. We need to consider an EU copyright regime - copyright is not just a legal issue, it is a societal issue. When rules are not accepted, it is difficult to apply them. We need to get back to basics.
Joe McNamee from European Digital Rights said that it was important for legislators to learn from successes of the past. Legislators did not listen to the objections of old telecoms monopolies and forced them to liberalise. Despite their objections, this turned out to be hugely beneficial for them. Legislators did not listen to the music industry that complained that audio cassettes were "killing the music industry" or that video cassette recorders were as dangerous for the film industry as the Boston strangler was for women home alone. If legislators had listened, they would have robbed the film industry of subsequent revenues from video sales and rentals. It is normal for comfortable old and rich industries to resist change, even beneficial change, and it is the duty of legislators not to be swayed by their lobbying. On the other hand, it is also important to use legislation, where this is proven necessary, rather than outsourcing the powers of the state to private entities. It is precisely for this reason that the European Convention on Human Rights, the European Charter of Fundamental Rights and the International Covenant on Civil and Political Rights require restrictions on fundamental rights to be based on law. The trend towards entrusting regulation of freedom of communication to internet intermediaries is undemocratic and dangerous and must be opposed by legislators.
Enrique Dans
http://www.enriquedans.com/
University of Strasbourg Centre for IP Studies
http://www.ceipi.edu/index.php?id=5408&L=2
Smari McCarthy talk - International Modern Media Initiative (30.06.2011)
http://www.edri.org/files/McCarthy_copyright_ep_talk.pdf
Europe-wide copyright key for authors and consumers
http://www.socialistsanddemocrats.eu/gpes/public/detail.htm?id=135904&...
EDRi documents on IPR
Self-regulation study
http://www.edri.org/files/EDRI_selfreg_final_20110124.pdf
IPR Enforcement consultation response
http://www.edri.org/files/edri_ipred_110331.pdf
E-Commerce Directive consultation response
http://www.edri.org/files/EDRi_ecommerceresponse_101105.pdf
Content online consultation response
http://www.edri.org/files/edri_content_online_consultation100104.pdf
(Contribution by Joe McNamee - EDRi)
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Deutsch: ENDitorial: Warum es gut war, Netzsperren vorzuschlagen
Now that the European Parliament's Civil Liberties Committee has voted again (yesterday, 12 July 2011, by 50 votes to zero) against the introduction of mandatory EU-wide Internet blocking, it is worth considering the huge value of the German blocking proposal by then Minister Von Der Leyen and the subsequent EU-level blocking proposal by Commissioner Malmström. These two women did more for the anti-blocking campaign than they frequently receive credit for.
When asked to introduce blocking "voluntarily", the German Internet industry took the brave decision, unlike ISPs in countries like Denmark, Sweden and the UK, to demand a democratic process and a law before blocking could be introduced. This led to a German draft law and extensive public debate over many months. This public debate led to an understanding that protection of children online is about effective policy and not populism. As a result, blocking was rejected in Germany and the German government was in a position to fight strongly against blocking on an EU level. Without Minister Von Der Leyen's proposal, the German government would not have been in a position to take a crucial stand against blocking and the outcome could have been very different. Indeed, without Minister von der Leyen's blocking proposal, the German victims' association against Internet blocking (MOGiS e.V.) would probably not have been founded and its energetic and effective work on a European level would never have been done.
Only days after being appointed as Home Affairs Commissioner, Cecilia Malmström announced that blocking would be included in the Child Exploitation Directive. This gave activists the maximum amount of time to campaign against the proposal, from March 2010 until now. Without the Commission's proposal, a campaign would have been difficult because it would have been a campaign against blocking in a legislative proposal that hadn't actually proposed blocking!
However, towards the end of the legislative process in the European Parliament's Civil Liberties Committee, it is very likely that blocking would have been proposed by some MEPs. This proposal would have been much stronger politically because, firstly, the anti-blocking campaign would have had to react in a far shorter timeframe and, secondly, it would have involved the Parliament deciding about a proposal that came from inside the Parliament, rather than from another institution.
In short, Minister Van Der Leyen's proposal was essential in ensuring the game-changing position of the German government in the EU Council of Ministers, while Commissioner Malmström's proposal was crucial in ensuring that the European Parliament was given the maximum amount of time to analyse blocking before coming to the inevitable conclusion that it is the wrong answer.
Commissioner Malmström's proposal has also had other very positive outcomes. As a result of the blocking proposal, the pre-existing failures of the European Commission to take action against online crimes against children became more obvious. This led to strong international efforts to address measures against child abuse websites in the United States and Russia. Within weeks of the proposal being made, the European Commission launched a joint action with the United States to address this problem - action which involved the highest levels in both the Commission and the US administration.
Statistics to be published shortly will show that delays in addressing child abuse websites in the USA have been hugely reduced - with, for example, the time taken by the US National Center for Missing and Exploited Children to process international law enforcement reports dropping from 5.12 days in May 2010 to 0.50 days in May 2011, with overall processing time dropping from 6.85 days to 0.91 days. The Russian child abuse hotlines are similarly reporting major improvements. Ironically, therefore, the Commission's blocking proposal has had the effect of making blocking more pointless, more disproportionate and more indefensible than it has ever been. Of course, while removal of child abuse websites is infinitely better than blocking them, we must remain vigilant that the removal of such sites is seen as an end in itself and that due process of law is followed to ensure that criminal activity is investigated and prosecuted.
In summary, if blocking had not been proposed by Minister Van Der Leyen and Commissioner Malmström, it is quite possible that we would now have EU-wide blocking. If Commissioner Malmström had not proposed blocking, the major improvements that mean that blocking is even more pointless than ever would never have happened. It was good for them to propose blocking, because that's why we do not have EU-wide blocking.
US, EU against Internet child porn (12.04.2010)
http://news.hostexploit.com/hosts-and-registrars-news/3629-us-eu-again...
Russian hotline
http://www.friendlyrunet.ru/en/index.phtml
EDRi blocking booklet
http://www.edri.org/internet-blocking-brochure
Abuse victims' association against Internet blocking
http://mogis-verein.de/eu/
(Contribution by Joe McNamee - EDRi)
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Deutsch: Mitmachen: PNR-Postkartenaktion
Write postcards during your holidays to the Members of the European
Parliament and ask them to vote against the PNR-Agreements
http://www.nopnr.org/pnr-postcard-campaign/
German version of the campaign (only in German, 6.07.2011)
http://www.unwatched.org/20110706_Postkartenaktion_gegen_PNR
This article is also available in:
Deutsch: Lesestoff
EDPS calls on the European Commission to ensure that safeguards for online
behavioural advertising are respected (11.07.2011)
http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/...
Mrs. Kroes: Will You Let Them Control the Net? (13.07.2011)
http://www.laquadrature.net/node/4647
Statewatch Analysis: "Network with errors": Europe's emerging web of
DNAdatabases by Eric Topfer
http://www.statewatch.org/analyses/no-134-dna-databases.pdf
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Deutsch: Agenda
24-30 July 2011, Meissen, Germany
European Summer School on Internet Governance 2011
http://www.euro-ssig.eu/
10-14 August 2011, Finowfurt near Berlin, Germany
Chaos Communication Camp 2011
http://events.ccc.de/camp/2011
10-17 September 2011
Freedom Not Fear - Internationa Action Week
http://www.freedomnotfear.org
11 October 2011, Brussels, Belgium
ePractice Workshop: Addressing evolving needs for cross-border eGovernment services
http://www.epractice.eu/en/events/epractice-workshop-cross-border-serv...
27 - 30 October 2011, Barcelona, Spain
Free Culture Forum 2011
http://fcforum.net/
25-27 January 2012, Brussels, Belgium
Computers, Privacy and Data Protection 2012
http://www.cpdpconferences.org/