DG Markt has been secretly working on a file-sharing MoU for over a year. According to available sources, telecoms industry groups such as EuroISPA and ETNO have been sitting together with the rights-holders such as IFPI and Vivendi, in meetings chaired by Commission staff. But why did the Commission not reveal the MoU possibility in answer to a European Parliament question?

The European Commission is trying to get industry to agree to a "voluntary" MoU on file-sharing, and copyright enforcement. The MoU has been discussed in non-public talks with industry lobbyist along with a parallel initiative to update and amend the IPR Enforcement directive. On the table are blocking injunctions and privacy implications for 3-strikes, as well as so-called 'legal offers'.

The existence of the talks was first revealed by

the French website PC Inpact , in an article which outlined plans for filtering under discussion. Further analysis of the documents by iptegrity, together with new information, has enabled more of the story to be pieced together, including the possibility that the European Parliament was not fully informed.

The Commission calls it the Stakeholders' dialogue on illegal up- and downloading. It was supposed to have resulted in an agreed document to be made public following a meeting on 10 September this year. If no agreement on a text was forthcoming, the Commission was supposed to have released its own report, written on 23 Jul;y this year. However, no public document has yet been released.

The MoU itself is understood to cover so-called 'legal offers' and 'educational 'campaigns addressed to Internet users. It aims to

Enhance the collaboration at EU level between rightholders and Internet companies in certain areas with the aim to reduce illegal up- and downloading.

Work towards a draft inter-industry agreement covering areas related to illegal up- and downloading, where collaboration could be achieved and best practices be applied within the existing legal framework

The amending of the IPR Enforcement directive (IPRED) could include blocking injunctions against websites, and preparatory work to underpin a graduated response or 3-strikes scheme. Topics on the agenda for this project include:

Injunctions (permanent and interlocutory) against intermediaries in the context of illegal up- and downloading"

Measures which could or could not be taken by intermediaries against illegal up- anddownloading.

Measures which could or could not be taken against facilitating websites.

(Voluntary) cooperation between ISPs and rightholders

The lobbyists present include the heavy-weight lawyers from IFPI and the MPA, as well as Vivendi, and GESAC. From the telecoms industry, lobbyists included Euro-ISPA, ETNO, ECTA, BT, Telecom Italia, Telefonica, France Telecom, and even Edima which includes Internet companies such as Yahoo.

Interestingly, the UK regulator, Ofcom, was also present although it would seem to me that it is inappropriate for a regulator - which will be supervising 3-strikes measures - to be present at such a lobbyists meeting.

BEUC, the EU-consumers' group, declined from the start to attend the DG Markt talks. This is referred to in the DG Markt documents. But a letter from BEUC, seen by iptegrity, cites several reasons for declining, among them lack of co-oridination with ongoing inter-institutional negotiations and that 'voluntary agreements on copyright...go beyond the current regulatory framework ... the legality of which remains ambiguous'.

No other citizens' groups appear to have been invited or even considered for these discussions.

The discussions first began in 2009, and eight meetings have been held. The idea of an MoU - which will reflect 'co-operation' between the telecoms and rights-holder industries - has been considered since at least February this year.

However, the Commission has failed to make this public, even in an answer to a European Parliament question. It is not clear whether the attendees are officially being asked to maintain silence, but one lobbyist on the attendance list pretended not know about the talks, when approached by iptegrity.

Since the original story was exposed, it has emerged that a question was raised by MEP Stavros Lambrinidis, a vice President of the Parliament who is known for his work on civil liberties issues. It referred specifically to a meeting of 3 March 2010. Among other things, Mr Lambrinidis asked

5. What future steps will the Commission take with regard to the Stakeholders' Dialogue? How does DG MARKT plan to involve the EP in the next steps in this or similar issues?

The answer was as follows:

Upon completion of the current series of technical and often exploratory meetings of the Stakeholders' dialogue on illegal up- and downloading, the Commission intends to review the situation. The Commission will carefully monitor the development and functioning of any voluntary arrangements agreed as a result of this or any other Stakeholder Dialogue and, as stated in the communication, remains ready to consider alternative approaches, if needed in the future. Should there be any formal follow up, the Commission will, of course, consult and fully involve the Parliament in accordance with the mutually agreed institutional procedures, in a timely manner.

In other words, the answer was vague and woolly and gave nothing away. It does not mention the possibility of such an MoU or the proposed work on the IPR Enforcement directive.

In more new information uncovered, one of the attendees, the FEP , provides a record of the previous meeting on 3 February, chaired by the Commission's Margot Froehlinger. It states that the possibility of such an MoU had already been discussed. The document contains several references to attendees illustrating pros and cons of an MoU, and a statement from Mrs Froehlinger herself.

"Mrs. Fr?hlinger said that if self-regulation is untenable, there might be a need to regulate. She also ensured that any outcome of the Dialogue (be it a code of conduct, a MoU, etc.) will be scrutinized by the Data Protection Authority, so that this will not be an obstacle in the end."

"She mentioned that often tough negotiations produce texts based on the concept of "constructive ambiguity" and wondered whether the EU should put in place stricter regulations, more directly

applicable."

The Commission's answer states in -civil servant-like jargon that such talks should be conducted without the Parliament's involvement. The way I read the answer, it even seems to suggest that it could go ahead with such a voluntary agreement and only inform the Parliament afterwards.

This is not conducive to inter-institutional transparency as required under the Lisbon Treaty. It is even worse that the Commission shows so much disdain for citizens and the democratic process, that it thinks it's ok to hold talks on such politically sensitive matters, with a bunch of hired guns, in private.

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The original exposure of the European Commission DG Markt Stakeholders' dialogue on illegal up- and downloading was reported by the French website PC Inpact.

PC Inpact Exclu : comment les ayants droit d?fendent le filtrage en Europe , by Marc Rees

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2010), Secrets and lies and EU file-sharing talks , http://www.iptegrity.com 20 December 2010.