On 25 May 2004 the Creative Commons licensing scheme gained a major victory in Europe. The BBC announced it will apply a CC-license to the content of its Creative Archive, thus offering free public access to some of their audio and video programming. The CC model turns copyright on its head by explaining the ways that the content can be used rather than saying it cannot - or Some Rights Reserved as they put it. By applying a CC-type license to the content, the BBC will enable individuals in the UK to download released content to their computers, share it, edit it and create new content. Commercial reuse of the content will not be allowed.

Professor Lawrence Lessig, chair of the Creative Commons project and advisor of the BBC was clearly excited: "The announcement by the BBC of its intent to develop a Creative Archive has been the single most important event in getting people to understand the potential for digital creativity, and to see how such potential actually supports artists and artistic creativity."

The rapporteur of the EU Directive on the Enforcement of Intellectual Property Rights, Janelly Fourtou (UDF, Conservative, France), has earned millions from business related to Intellectual Property Rights, even while she was shepherding the report through the European Parliament. As several newspapers have investigated, Mrs. Fourtou runs a private fund together with her husband, Jean-René Fourtou, who is the CEO of Vivendi Universal, the media giant that is worldwide the biggest holder of intellectual property rights. In November 2002, this fund acquired transferable bonds worth 14,5 million Euro, which shall be transferred into Vivendi Universal shares at preference conditions in 2005. The Fourtou children have, according to the Financial Times, acquired bonds for an additional 5 million Euro. The Fourtou couple has until now made a computational surplus of 10 million Euro; their children 3,4 million Euro.

On 27 May 2004 the Belgian court of Brussels rejected the complaint made by the consumer organisation Test-Achats (Test Aankoop) against four record companies in Belgium (EMI, Sony, Universal and BMG) about their use of technical copy protection measures. Test-Achats collected 200 complaints from individual members and demanded that the companies would stop using technical measures on their CDs and remove all copy-controlled CDs on the market. The judge ruled that copyright legislation does allow for a private copy, but does not grant a 'right'. According to an article in the national newspaper 'De Morgen', Test-Achats immediately announced an appeal.

Spokesperson Ivo Mechels said to De Morgen that the judge did not provide sufficient argumentation in his verdict. He complained the verdict only comprised half an A4 paper. "The judge seems to have based his ruling on the content table of the copyright law. Making a private copy is classified under the exceptions, so according to his particular logic, it is an exception. There was no debate about the meaning and purpose of the legislation. When we presented the European Copyright Directive from 2001, which allows for private copies but has not yet been implemented in Belgium, the judge suggested that would be a matter for parliament to decide. But the text of this directive clearly states that voluntary initiatives can be undertaken if the implementation is delayed. And delayed it is indeed in Belgium (...)."

The Dutch MP3 search engine zoekmp3.nl has won a clear victory in an full civil proceedings case they instigated against Brein, a Dutch representative body of both the recording industry and the music rights collecting societies. Zoekmp3 asked and got a clear confirmation that their activities as a search engine do not constitute a copyright infringement.

The website only provides information to its users where they can find mp3-files, the court said, and the users do not infringe on any third party rights. The court also explicitly refers to a recent debate in the Lower House about the new Copyright Act. The Dutch minister of Justice confirmed in this debate that downloading music for private use is perfectly legal, even if the source might be illegal. Different from a P2P-application like Kazaa, the users of the search engine do not make any files available to others. Just downloading files with the facilities of the search engine 'is therefore in principle nor infringing nor unlawful'.

On 18 May 2004, the Italian Senate turned a highly controversial new decree into law that puts heavy fines and even prison sentences on the download of movies, music or other copyrighted works even when done without any commercial purpose. Though the law speaks of penalties when 'making a profit', jurisprudence in Italy has already shown that this wording does not protect purely personal use.

Downloaders and file-sharers also risk the seizure of their equipment and a humiliating publication of the verdict in the national press. See EDRI-gram 2.8. The obligation on internet access providers to spy on their customers and proactively report to the police, was deleted by a parliamentary amendment. Hosting providers have to respond to a judicial request to hand-over customer data and take down or block access to infringing materials. The law will enter into force in a few days, one day after publication in the Official Journal.

Tuesday 18 May the Council of the European Union adopted by a qualified majority in its Competitiveness meeting a Common position for the Second Reading of the Software Patent Directive. The text is described by the Foundation for a free Information Infrastructure as 'the most uncompromisingly pro-patent text yet'. The Common Position, which was agreed upon by the 25 Member States' ministers in charge of Internal Market, Industry and Research, largely ignores a vote in the European Parliament last September to restrict patentability in a way that would have been in line with the European patent Convention and effectively rejected patentability of actual software.

The text that the Council has voted for is regarded by many experts as being even worse than the initial Commission proposal, to which it adds direct patentability of computer programs, data structures and process descriptions. This extension of the focus seems to be the result of a shift in the internal balance of powers within the European Commission. The DG Internal Market, led by Dutch Frits Bolkestein and strongly in favour of software patents, increasingly prevails over DG Information Society, led by Erki Liikanen from Finland and mostly sceptical about software patents.

The European Commission warned the 16 different organisations in Europe that collect the royalties on behalf of music-authors that they may be breaking EU competition rules. The collecting societies have closed a pan-European pact in the Santiago agreement, whereby each national organisation functions as the only shop for all European music licenses.

"The structure put in place by the parties to the Santiago agreement results in commercial users being limited in their choice to the monopolistic collecting society established in their own member state," the commission said.

If there was more competition between the societies, both music download providers and users would profit, according to the Commission.

The collecting societies have two and a half months to reply to the Commission's objections. They can also request a hearing at which it would be able to submit their arguments directly to the representatives of the national competition authorities.

The Union for the Public Domain is organising a survey about the way governments act in the preparation of the proposed WIPO Broadcasting Treaty. The draft stands to give broadcasters the power to regulate copying, reproduction, distribution and right of transmission. It would extend the length of these powers from 20 to 50 years, and some versions expand the powers to web-casting. The treaty would also make it illegal to circumvent technological protection measures like broadcast flags. All of this even if the broadcast is of a public domain work.

One of the major difficulties of protecting the public domain against these threats is that the positions of national representatives in these international forums are unknown, even to citizens of the country they represent.

The Union for the Public Domain calls on all interested citizens to first contact the co-ordinator and then use the questionnaire to collect information about national positions. The results will be posted on the unions website.