European Parliament steps back from promoting ISP liability
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Deutsch: Europäisches Parlament distanziert sich von der Providerhaftung
On 11 September 2012, the European Parliament voted on an own-initiative report of Mr Jean-Marie Cavada (EPP, France) on the online distribution of audiovisual works.
As we reported in the EDRi-gram after the vote in the leading Committee, the Culture and Education Committee, last July, the report was containing some surprising and potentially very problematic terms on the liability of networks operators. The text was calling for “ways to encourage network operators to standardise their technical tools” for copyright enforcement and arguing that the current trend was towards a removal of liability of networks operators. This is factually wrong, could lead to privatisation of censorship and would encourage enforcement outside the rule of law. Finally, this is in no way pursuing the goal of the report, which is to promote and develop access to cultural content.
This problematic part of the report (point 59 of the final report) was thankfully rejected in the final vote of the European Parliament on the dossier following a lot of behind the scenes activity by EDRi.
This vote is important for three reasons.
Firstly, the European Parliament would have faced difficulties convincing the other institutions of its credibility on the dossier. A report containing (obviously) inaccurate statements will not be particularly credible.
Secondly, encouraging network operators to standardise their “technical tools” means encouraging Internet service providers to monitor, filter and possibly block access to content. This call was going against recent decisions of the Court of Justice of the European Union that protecting intellectual property could not override other fundamental rights such as the right to privacy, the freedom of information and the freedom to conduct business. (C-70/10 Scarlet/SABAM and C-360/10 SABAM/Netlog). The mix of “technical tools” creates the motive, means and opportunity for Internet companies to appoint themselves as the judge, jury and executioner of online law enforcement.
Finally, and most importantly, it shows the willingness of the European Parliament to move away from concentrating all intellectual property related issues on enforcement – particularly privatised enforcement by Internet companies. It is a clear reversal of the Parliament's previous approach in the so-called “Gallo report” adopted by the European Parliament in 2010 that demanded “appropriate solutions” from Internet Service Providers in “dialogue” with stakeholders. One such “dialogue” was the one convened by the European Commission, which suggested the “voluntary” implementation of exactly the kinds of filtering systems that the European Court of Justice subsequently ruled to be in breach of citizens' fundamental rights.
This vote is in tune with the recently adopted Opinion of the Industry Committee of the European Parliament on Completing Digital Single Market, led by Italian Conservative Parliamentarian Aldo Patriciello. In that report, Parliamentarians focussed on eliminating the many barriers to online services in Europe, demanding in particular “a harmonised approach to copyright exceptions and limitations”. This reflects a growing awareness that it is time to move away from trying to use disproportionate tools to enforce a copyright system that is devoid of credibility and towards building a more credible approach.
The road will still be long to adapt the current framework to the digital revolution and to overcome the barriers that prevent consumers to access, use and enjoy cultural content but the European Parliament has made it clear that it was the direction it wanted to take.
EDRi-gram: EP: Surprises in the online distribution of audiovisual
works' report (18.07.2012)
Not yet published by Parliament
Cavada Report (25.07.2012)
Gallo Report (22.10.2012)
(Contribution by Marie Humeau - EDRi)