Is there a difference if 3-strikes measures are optional at European level, rather than obligatory? This is a key question for policy-makers as they prepare for  the European Council vote on Thursday. 

*You can watch the European  Council  debate the Telecoms Package  on a webcast via this link  from 9.15 am (8.15 am  UK) on Thursday 27th November*

 The Council of Ministers has today published its compromise proposals for the Universal Services Directive and they  are now available online (this was the main part of   the Harbour report in the European Parliament) . The main change is that the requirement for telecoms regulators to enforce "co-operation" agreements between ISPs and rights holders, has been made optional, not compulsory:  the word 'shall' which conveyed the obligation,  has been replaced by 'may' (in Article 33 (2a) which was confirmed recently by MEP Ruth Hieronymi as 'anchoring' Olivennes-style proposals into the Package). Thus, it would appear to  imply a kind of optional 3-strikes or indeed, a voluntary agreement between the two industries for the purposes of enforcing copyright. 

Another significant change is the removal of the requirement for ISPs to

I have written another  briefing paper on the Telecoms package. Called Packaging up copyright enforcement - how the Telecoms Package slots in the framework for a European policy to restrict Internet content, the paper discusses the mechanisms  that could be used to bring in a policy of copyright enforcement and how the Telecoms Package lays the foundation for it. The paper argues that it is a clear intent of the legislation that national regulators will be asked to promote a policy where ISPs have to

A legal analysis of the Telecoms Package, released today by the UK's Open Rights Group, says that the Package provides for a set of "crucial obligations' on Europe's telecoms companies and ISPs to "co-operate" with the copyright industries. 

The analysis considers whether the Telecoms Package could provide a legal platform for either 3 strikes (graduated response)  or filtering. It provides a breakdown, from a legal perspective, of the amendments in the Telecoms Package which relate to these types of measures.

In the summary, the authors say: "This is a crucial set of obligations, about to be imposed on all of Europe’s ISPs and telcos, which should be debated in the open, not passed under cover of stealth in the context of a vast and incomprehensible package of telecoms regulation. It seems, on careful legal examination by independent experts, more than possible that such a deliberate stealth exercise is indeed going on. When passed, these obligations will provide Europe level authority for France’s current “3 strikes” legislation, even though this has already been denounced as against fundamental rights by the European Parliament, when it was made clear to them what they were voting for or against."

On network filtering, they comment:  "What seemed therefore to be a provision requiring

The European Commission is playing an odd kind of card game with the Telecoms Package amendments. It supports  Amendment 138 to the Framework directive, but drops amendment 166 to the Universal Service directive, yet both amendments support the same principles. Either Mrs Reding  genuinely wants to see the Internet remain open and users treated fairly, or she  is playing some kind of  political poker.

The European Commission's opinion on the  amendments to the Telecoms Package was released late today - no doubt they were hoping to bury it over the week-end. Because in spite of the political wool which they continue to eke out of their creaking PR  spindle, the controversial and inflamatory presence of content matters and  copyright enforcement is still plain to be seen.

If Mrs Reding genuinely had realised the error of her ways, we would have expected to see the non-acceptance of amendments 112 and 61 - the linked co-operation and lawful content amendments. We would also have expected the scrapping of all the content-related amendments, including the requirements to place restrictions in users contracts and not anticipated that the Commission would reinsert the text to inform users about 'copyright infringements and their legal consequences'. Both of these being key requirements for graduated response measures. 

And it goes without saying,  that she would be able to support both Framework directive 138 and Universal Service 166.  

 But Mrs Reding has dropped one  card on the table. This is the Commission's refusal to accept amendment 120. This amendment deleted the requirement for ISPs to enforce copyright and copyright enforcement law.  It was one of the copyright hooks, inserted by the College of commissioners - rumoured by Mrs Reding herself - before the Telecoms Package  began its journey through the Parliament.

If ever there was a giveaway, this is it. The Commission is making it clear that it wants copyright, and copyright enforcement to stay in the Telecoms Package. The question is, what  will it do with card number 138?

The Commission's proposals are available here .  

But it will keep an amendment for processing traffic data in support of graduated response, in the e-Privacy directive.

The European Council review of the e-Privacy directive in the Telecoms Package will dump a proposal for a study on IP addresses  from the European Data Protection Supervisor (EDPS). The proposal was included in the Telecom Package - Universal Service