Monday, December 1, 2008

Year in Review: Copyright Law EU

Three Strikes
France was the first country in the world to consider the implementation of a three strikes policy (graduated response policy) with respect to file sharers.[1] France also set up the High Authority for the Distribution of Works and the Protection of Rights on the Internet (La Haute Autorit—ź pur la diffusion des oeuvres et la protection des droits sur internet, or HADOPI).[2] In response to the new authority and the powers conferred upon it the Electronic Frontier Foundation stated:

“As judge, jury, and executioner of "three strikes", HADOPI is born with wide-ranging powers over all French Internet users. The High Authority acts on reports of suspected infringement from rightsholder groups. Based on those accusations alone it can contact, warn, suspend and finally deny Net service to any French citizen. The High Authority has the right to obtain and peruse a year's worth of personal records from ISPs in the pursuit of their targets. They can order ISPs to include new filtering systems into their infrastructure, and can fine them up to 5,000 euros if they provide Net service to anyone on placed on the Authority's national Internet blacklist.”[3]

In October 2008 the European Parliament rejected the idea of a EU wide implementation of a three strikes policy.[4] The EU Parliament instead voted to approve an amendment that recognises users right to privacy and civil rights through Amendment 138:[5]

"(ga) applying the principle that no restriction may be imposed on the rights and freedoms of end-users, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, without a prior ruling by the judicial authorities, except where dictated by force majeure or by the requirements of preserving network integrity and security, and subject to national provisions of criminal law imposed for reasons of public policy, public security or public morality."[6]

The vote was 314 against a three strikes policy and 297 in favour and the Amendment to the Bono Report on Cultural Industries was approved.[7] The introduction of a three strikes policy is therefore possible only at the discretion of individual member countries.[8]
This followed a decision of the European Court of Justice in February 2008 that European Community law does not oblige EU member states to implement laws enabling the disclosure of internet account holders identities. The case, Promusicae v Telefonica concerned the Spanish music rights holders association request for user identities from the ISP Telefonica for the purposes of file sharing litigation.[9]

Other countries to consider a three strikes policy include Denmark where ISPs lobbied strongly against such as measure.[10] Australia, Japan and the United Kingdom also expressed some interest in introducing a three strikes scheme.[11]

ISP Filtering
In the process of considering the implementation of a three strikes policy the European Parliament also voted against the implementation of ISP based filtering with Amendment 139 stating:

“(g) applying the principle that end-users should be able to access and distribute any content and use any applications and/or services of their choice, subject to national provisions of criminal law imposed for reasons of public policy, public security or morality.”[12]


[1] Digital Music News, Sarkozy Starts Selling Three Strikes to Europe... (7 July 2008) <http://www.digitalmusicnews.com/stories_old/070708france> at 9 July 2008; ZeroPaid, French RIAA Announces Deadline to Ban File-Sharers from the Internet (8 May 2008) <http://www.zeropaid.com/news/9477/French+RIAA+Announces+Deadline+to+Ban+File-Sharers+from+the+Internet> at 10 May 2008;
[2] ZeroPaid, French RIAA Announces Deadline to Ban File-Sharers from the Internet (8 May 2008) <http://www.zeropaid.com/news/9477/French+RIAA+Announces+Deadline+to+Ban+File-Sharers+from+the+Internet> at 10 May 2008
[3] ZeroPaid, French RIAA Announces Deadline to Ban File-Sharers from the Internet (8 May 2008) <http://www.zeropaid.com/news/9477/French+RIAA+Announces+Deadline+to+Ban+File-Sharers+from+the+Internet> at 10 May 2008
[4] Digital Music News, European Parliament Rejects Three Strikes Proposal (26 September 2008) <http://www.digitalmusicnews.com/stories/092508eu> at 5 October 2008
[5] TechDirt, European Parliament Rejects Laws Kicking File Sharers Off The Internet (25 September 2008) <http://www.techdirt.com/articles/20080925/1522352377.shtml> at 26 September 2008
[6] Digital Music News, European Parliament Rejects Three Strikes Proposal (26 September 2008) <http://www.digitalmusicnews.com/stories/092508eu> at 5 October 2008
[7] Digital Music News, European Lawmakers Question French ISP Monitoring, Enforcement (14 April 2008) <http://www.digitalmusicnews.com/stories/041308EU> at 17 April 2008; EFF Deeplinks, EU Politicians Strike Back Against Three Strikes (7 April 2008) <http://www.eff.org/deeplinks/2008/04/eu-politicians-strikes-back-against-three-strikes> at 13 April 2008; ZeroPaid, European Parliament Rejects Plans to Disconnect File Sharers (11 April 2008) <http://www.zeropaid.com/news/9398/European+Parliament+Rejects+Plan+to+Disconnect+File-Sharers> at 13 April 2008
[8] Digital Music News, European Parliament Rejects Three Strikes Proposal (26 September 2008) <http://www.digitalmusicnews.com/stories/092508eu> at 5 October 2008; BBC News, Europe rejects anti-piracy plans (11 April 2008) <http://news.bbc.co.uk/2/hi/technology/7342135.stm> at 13 April 2008; TechDirt, European Parliament Rejects IFPI Plan To Make ISPs Copyright Cops (10 April 2008) <http://www.techdirt.com/articles/20080410/165146815.shtml> at 13 April 2008
[9] EFFector, EU Law Does Not Require ISP to Hand Over Customers' Identity Data in Alleged Filesharing Case (6 February 2008)Vol. 21, No. 04 <http://www.eff.org/deeplinks/2008/01/eu-law-does-not-require> at 7 February 2008
[10] Digital Music News, Three Strikes? Danish ISPs Say No, No, No... (17 September 2008) <http://www.digitalmusicnews.com/stories/091708denmark> at 21 September 2008
[11] The Star, A Swing and a Miss for 'Three Strikes' Policy (21 April 2008) <http://www.thestar.com/sciencetech/article/416484> at 26 April 2008
[12] Digital Music News, European Parliament Rejects Three Strikes Proposal (26 September 2008) <http://www.digitalmusicnews.com/stories/092508eu> at 5 October 2008

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