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ENDitorial: About copyright reform

14 March, 2012

This article is also available in:
Deutsch: ENDitorial: Zur Urheberrechtsreform

EDRi presentation to ALDE Group Meeting on 7 March 2012

In this short presentation, I will briefly address two points. Firstly, the need to soberly assess the very difficult position we currently find ourselves in and, secondly, the dangers of failing to learn from past mistakes and endangering the openness of the Internet - its core asset that gives it the societal and economic benefits that we all now take for granted.

According to Commissioner Neelie Kroes, "citizens increasingly hear the word copyright and hate what is behind it. Sadly, many see the current system as a tool to punish and withhold, not a tool to recognise and reward." According to the European Commission's Communication on the Application of the IPR Enforcement Directive, breaches of intellectual property in the digital environment are "ubiquitous". Ubiquitous means that everywhere and all the time. When one person breaks a law, that person has a problem. When society breaks a law ubiquitously, the law has a problem.

It is crucial to recognise that this is our starting point. This would be a recognition of fact, not a radical departure. Whatever else one can say about Commissioners Kroes and Barnier, they are not revolutionaries.

We have come to this point because our existing policies have failed. Every few years we create repressive policies for the way things were two year ago, whether the injunctions in the 2001/29 Directive (and ACTA) or the information access obligations in the 2004 IPRED (and ACTA). But ACTA is worse, going into both privatising the law and exporting it.

Our approach has unquestionably failed and will fail. Einstein's definition of insanity was doing the same thing over and over again and expecting different results. Each round of discussions of repressive measures increase the divide between citizens, most particularly the younger generation, and lawmakers. We are bringing up a generation of citizens who watch law being developed and shake their heads in disbelief and are, as George Orwell said of the younger generation in 1984 "not rebelling against its authority but simply evading it."

The next generation of peer-to-peer filesharing is about to be launched. Technology makes another step forward while policy-making... doesn't. The problems lie elsewhere. The problem lies in all of the excuses that the current copyright regime gives to citizens to hate it, to ignore it and to evade it.

Citizens look at restrictions on private copying of content that they have paid for and say, this is unfair. "I will choose free and unrestricted rather than paid-for and restricted," they understandably say. Citizens look at services like Netflix being available in the USA but not in Europe. They wonder why European licensing is so tortured and counterproductive that Netflix' share price dropped by 27% on the day that the cost of expanding into just one European market became public.

Until there is a fundamental shift in thinking, the needed reforms are not going to be made. Instead, we will take more and more measures which threaten the openness and freedoms of the Internet, without learning from our mistakes. The Internet, with all of its societal and economic benefit, is a success because of its openness.

This openness is under threat already from a telecoms industry which has such a deeply ingrained anti-competitive instinct that the EU institutions have been working almost constantly for decades on legislation to force competition into the market - from the initial liberalisation in the eighties to the 1999 Communications Review, to the local loop unbundling regulation to the recent Telecoms Package to mobile roaming, mobile data roaming, etc.

Now, the largest ISPs want to interfere anti-competitively with online traffic to restrict access to certain sites and services - undermining competition between operators, undermining the online marketplace and, ultimately creating another barrier to entry for innovative online audiovisual services. All other things being equal, the current EU regulatory framework will struggle to stop them.

Within this context, the larger operators are overjoyed at the idea that they should volunteer to police the Internet. They love the incoherence of the European Commission's views that they should not be allowed to interfere with online traffic but that, under ACTA, they should be encouraged to interfere with traffic for copyright enforcement purposes. They love the incoherence of the Commission defending net neutrality and funding a whole range of directionless projects to encourage filtering and blocking of traffic for copyright, for terrorism, for anything as long as it is voluntary and can thereby circumvent the Charter on Fundamental Rights.

Encouraging Internet providers to become gatekeepers of the Internet would put one of Europe's most instinctively anti-competitive industries in charge of the online marketplace. Anyone who thinks that this will open up the market for innovative online services is sorely mistaken.

This is what ACTA does but, being international, does it on a nuclear scale. In the plenary two weeks ago, an ALDE-inspired debate was held in a European Parliament plenary session to deal with the unacceptable situation where the fundamental rights of EU citizens were being undermined by the extra-territorial legislation effects of US legislation. Under ACTA, we would be signing up to an agreement that would seek to place a binding obligation on the United States to encourage private companies to regulate the fundamental right to freedom of communication of EU citizens.

What might this look like? One instructive place to look at is the SOPA proposal. Section 104 offers unlimited liability protection to Internet access providers who voluntarily block websites, as well to any company that would take lawless punitive measures against online resources abroad. This would cover payment network provider, Internet advertising services, advertisers, Internet search engines, domain name registries or domain name registrars. There have already been isolated cases of European and other non-US websites being removed from the Internet under US law, for allegedly breaching gambling law and copyright law.

And what do these private punitive actions taken by intermediaries look like in the real world. Well, ask Wikileaks. Their domain name registrar removed, their payment providers refused to process donations, their web hosting provider removed their hosting service. Commissioner De Gucht says that under ACTA, what was permitted by law, will continue to be permitted by law. What Wikileaks did was permitted by law. What Wikileaks did remains permitted by law. The only problem is, in the Wild West world of enforcement by private companies, based on private interests or under government pressure, the law is not the master.

Add to this the added incentives for disproportionate private enforcement produced by the increased scope of damages in ACTA and the absurd definitions on criminal sanctions and self-censorship and pre-emptive enforcement actions by private companies become the rule.

This destruction of our right to regulate our own freedom of expression and the destruction of legal certainty in the digital environment would be bad enough if there was any hope that the measure had any hope of actually achieving its intended target.

Instead, we know that repressive copyright enforcement measures do not work, so this is all cost and no benefit. We know that forcing Internet companies into becoming the Internet's gatekeepers will restrict the online marketplace for legitimate content, encouraging illicit offers rather than fighting them. We know that, to quote Commissioner Kroes, it will reinforce the view of citizens that copyright law is there to punish and withhold.

Commissioner Kroes speech: Who feeds the artist? (19.11.2011)

European Commission Communication on the application of enforcement of intellectual property rights (22.12.2010)

(Contribution by Joe McNamee - EDRi)



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