Friday, July 18, 2008

Telecoms package and copyright - some MEP views

I wrote to my MEPs last week about the vote on the complex telecoms package in the EU's IMCO and ITRE committees, particularly noting that several amendments might facilitate the coming of a 3 strikes mandate.

I've had several responses including one this morning from Conservative MEP, James Elles, who kindly sent me a summary of the views of Malcolm Harbour MEP, Conservative Spokesman on the Internal Market and Consumer Protection. Mr Harbour was also the proposer of some of the amendments which raised concerns. His views, as passed on by Mr Elles are as follows:

"Summary of reply from Malcolm Harbour MEP, Conservative Spokesman on the Internal Market and Consumer Protection:

Thank you for your e-mail concerning certain aspects of the Telecoms reform package, which is now going through the European Parliament.

I wanted to update you following the vote on July 7th in the Parliament's Internal Market and Consumer Protection Committee, which produced a very large majority in favour of a series of amendments that significantly enhance users´ rights in electronic communications. Some of the key points are summarised below:

· Users will now be informed by operators, before contracts are concluded, about any restrictions on access to services (such as Skype).

· Market demand and competition between operators will decide whether they see any point in restricting access. The IMCO vote does not give governments new powers to decide that, or to make applications illegal.

· Where handsets or other terminal equipment are included free, or at a subsidised price, users must be informed of the cost of terminating their agreement early.

· Number porting (the process of keeping a number when switching networks) will now take one day (while it has previously taken up to one month). However, there are also provisions in case of slamming (when a consumer is switched to another network without their consent) which will allow NRAs to intervene in such cases.

· Promotion of the European 112 emergency call number across the EU, and measures to speed up the availability of mobile caller location when emergency calls are made. This is complementary to existing national emergency numbers.

· Disabled users will have equivalent access to communications with special terminal equipment for their needs.

· The need to keep the Internet open by empowering regulators to intervene if a carrier discriminated against a particular service provider - for example, by blocking or slowing traffic.

· Regulators would be given enabling powers to allow standardised public service messages to be delivered to users. These service messages could include security protection advice, and advice on harmful or unlawful uses of the Internet, and their potential consequences. The information would be sent to all users, not to targeted individuals and not based on individual usage. Copyright infringement is just one of the areas that might be covered, but it will be up to public authorities to supply the information.

· Under Parliament's rules, the Committee also accepted, without a vote, a set of amendments from the Civil Liberties Committee on data protection. These include significant new requirements for operators to inform subscribers in the event of any breach of their personal data through electronic networks

The level of cross party support confirm that MEPs totally reject the claims that these amendments are intended to reduce consumer choice and undermine individual freedom. In particular, the Directive contains no provisions on Copyright Law enforcement, not does it refer, in any way, to the French Government's proposed enforcement agreement. MEPs will examine the detailed drafting of all amendments before the final approval by Parliament in September.

Malcolm Harbour MEP 08 July 2008"

I've responded further to Mr Elles as follows:
Dear Mr Elles,

Thank you for your response and the copy of Mr Harbour's views.

I would just point out that one of Mr Harbour's own proposed amendments to the telecom package would require national regulatory authorities to "oblige" telcos/ISPs (Internet service providers) "to distribute public interest information to existing and new subscribers when appropriate" warning about the infringement of copyright. Another of Mr Harbour's amendments requires national authorities to "promote cooperation" between ISPs and "services and the sectors interested in the protection and promotion of lawful content".

In addition your colleague, Syed Kamal, has proposed an amendment which essentially says regulatory authorities should not mandate one digital rights management (DRM) technology at the expense of available market alternatives.

I'm sure Mr Harbour is sincere in his belief that "the Directive contains no provisions on Copyright Law enforcement" but it is quite difficult to see how copyright spam, mandated cooperation between ISPs and rights holders, and drm are not about copyright.

Thanks again for taking the time to read and respond to my correspondence.


Ray Corrigan
As I've said before, though, Lilian Edwards has been reassured by Mr Harbour's assertion that amendments were not intended to lead to a 3 strikes mandate in member states.

In summary the responses from other MEPs were as follows:

Independent Ashley Mote is voting against the telcoms package. Nigel Farage of UKIP sees the EU as "inherently, irreformably and dangerously un-democratic and anti-democratic" and Andrew S Reed who responded on Mr Faragee's behalf is sure he shall vote as I would wish.
Cath Miller, Constituency Coordinator and Researcher for Caroline Lucas of the Green Party, produced the most comprehensive response as follows:

"Dear Ray,

Thank you for your email about this week’s vote on the Telecom Universal Service Directive in the European Parliament’s Internal Market and Consumer Protection Committee. Caroline has asked me to respond on her behalf.

She does not sit on this committee but other members of the Green Group do, so have been working hard to ensure that any adopted text guarantees citizen’s rights. Greens tabled an amendment requiring ISPs to ensure that subscribers can send and receive any form of content. We do recognise that in some extreme circumstances it might be necessary for ISPs to take action to preserve the integrity and security of the networks, but argue that this provision must relate only to network management i.e restrictions intended to avoid degradation or slowing of traffic in networks.

The compromise legislative text does state that ISPs do not have the right to monitor or block traffic on the internet. However, elsewhere it is made clear that the public should be informed about any activities that are unlawful. Caroline has serious concerns about the way this aspect of the legislation could be interpreted. For example who determines what constitutes lawful or unlawful activity? She does not agree that such definitions should be developed at EU level, arguing that national definitions might be more appropriate. Further, the purpose of warning users about unlawful activity is designed to create the circumstances in which restricting use is permissible, along the lines of the French ‘three strikes and you are’ out model.

Caroline’s work on the International Trade Committee has involved looking at issues such as file sharing and the fact that stealing a television, for example, is very different to ‘stealing’ a film from the internet, because the latter does not deprive others in the same way. She believes that alternative ways to support artists, writers and so forth must be developed, alongside a far more open policy of sharing music, film, software etc via the internet. This has relevance to the Telecom vote and the Green Group will be urgently discussing whether to support the Directive when it comes to plenary after the summer recess. Caroline thinks we need amendments that clarify the text by removing the vague and dangerous concept of "lawful", as it does not belong in the telecom package, and that seek to keep real net neutrality.

Greens submitted successful amendments that require ISPs to provide information to subscribers annually about more competitive tariffs and that promote an overall maximum contract periods of 24 months, with a 12 month maximum always offered. The main thrust of the Directive is to open the telecommunications market to competition and Greens have supported measures to separate the ownership of telecoms infrastructure and service provision, as we argue this is the only way to guarantee true market liberalisation from which consumers can benefit.

Caroline is confident that this Directive has been properly scrutinised and that it has not been ‘sneaked through’ as some critics are arguing. Green MEPs have been actively following its progress since the Commission’s proposals were first published in 2007 and the text has been the subject of focused work in committee since April of this year. It is now likely to come before plenary in September after the parliamentary recess.

Please be assured that when some members of the Culture and Education Committee sought to give ISPs a policing role in previous legislation, these efforts were rigorously and successfully resisted by Green MEPs. We were also at the forefront of the campaign to oppose software patenting and won support from the Parliament – see

Green views on the Telecom Directive do vary but are in favour of the maximum free flow of information and ideas on the internet and against any indiscriminate restriction of the use of the web.

Thank you for taking the time to write to Caroline.

Kind regards,


Cath Miller

Constituency Coordinator and Researcher

Office of Dr Caroline Lucas"

Ms Miller's point about that "we need amendments that clarify the text by removing the vague and dangerous concept of "lawful", as it does not belong in the telecom package, and that seek to keep real net neutrality" is well made. Requiring ISPs to determine what is "lawful" and implement architectural measures to deal with that interpretation is untenable. I do, however, lack Dr Lucas's confidence that this legislative monster has been properly scrutinised.

I've had no response to date from Baroness Nicholson of Winterbourne MEP (Lib Dems), Sharon Bowles MEP (Lib Dems) or Peter Skinner MEP (Labour).

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