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Telecoms package

The Telecoms Package (Paquet Telecom) was a review of European telecoms law. Ordinarily, it would have dealt with network infrastructure and universal service and other purely telecoms matters. However, buried within it, deep in the detail, were important legal changes that related to enforcement of copyright. These changes represented a threat to civil liberties and risk undermining the entire structure of Internet, jeopardising businesses and cultural diversity. This was the topic of my PhD research. I have made available here the underlying research, which I subsequently published in my books and papers listed below. If you are student, you should check my books for citation and referencing.

The bottom line is that changes to telecoms regulations were needed before EU member states could bring in the so-called "3 strikes" measures - also known as "graduated response" - of which France led the way, but other governments, notably the UK, followed. A swathe of amendments were tabled at the instigation of entertainment industry lobbying. These amendments were aimed at bringing an end to free downloading. They also brought with them the risk of an unchecked corporate censorship of the Internet, with a host of unanswered questions relating to the legal oversight and administration. These issues continue to arise today in the context of new policy initiatives. 

The Telecoms Package was voted in the plenary session of the European Parliament on 24th September. It followed a brief debate on 2nd September, and a committee vote in July. In November last year it was put to vote in the European Council. Now - winter 2009 - it is headed for a second reading in the European Parliament. The official start will be 18th February, but negotiations are underway now. The plenary vote was planned for 21 April. It has been re-scheduled to 6 May. This timetable has not left much time for public debate, and it reminds me of the rushed passage of the data retention directive (see Data Retention on this site). It is, if you like, regulation by stealth.

I had originally planned that this site would just highlight reports from elsewhere, related to my research topic. But at the time, it felt wrong to me that such critical changes - which will infringe on people's freedoms and fundamentally alter the social and legal character of the Internet - should happen without at least the opportunity for a full and frank public debate. So I set out the issues as I see them, and reported on relevant public events.

 If you like the articles in this section and you are interested in EU telecoms law and the 2009 Telecoms Package, you may like my books A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms and The Copyright Enforcement Enigma

Finally, you may like my book The Closing of the Net  which contains a  summary of the Telecoms Package story, and moves the policy agenda on to consider other issues of secondary liability including the Megaupload case. 

UK filters in the Wikipedia amendments

Monica Horten
Catetory: Telecoms package
Published: 09 March 2009

The UK government wants to cut out users rights to access Internet content, applications and services. Some of the information used to justify the change has been cut and pasted from the Wikipedia.

Amendments to the Telecoms Package circulated in Brussels by the UK government, seek to cross out users' rights to access and distribute Internet content and services. And they want to replace it with a 'principle' that users can be told not only the conditions for access, but also the conditions for the use of applications and services.

The UK government texts have been heavily criticised by the French campaigning group La Quadrature du Net . It is believed that they could have been drawn up by the UK regulator, Ofcom.

The amendments have also appeared in a set of compromise proposals put forward by the Czech Presidency for the Universal Services Directive (Harbour report).

The proposed amendments cut out completely any users' rights to do with content - whether accessing or distributing - which would appear to be in breach of the European Charter of Fundamental rights, Article 10. The Charter states that everyone has the right "to receive and impart information and ideas without interference by public authority and regardless of frontiers." In the digital age, the Internet, and the associated applications and services provided by the World Wide Web, is the means by which people exercise that right.

"NRAs shall promote the interests of the citizens of the European Union by inter alia:

(g) applying the principle that end-users should be able there should be transparency of conditions under which services are provided, including information on the conditions of to access to and/or use of and distribute information or run applications and services, and of any traffic management policies of their choice

The wording "conditions under which services are provided" and "conditions of use" also allude to the principle of conditional access which applies to satellite and cable television. In EU law, it is established in the Conditional Access Directive (Directive 98/84/EC) which concerns protection of copyright on satellite and cable television systems. The subscription television model is alluded to

Telcos throw more wood on EU net neutrality fire

Monica Horten
Catetory: Telecoms package
Published: 04 March 2009

Telcos are lobbying hard for discriminatory practices in network management to be permited, which threaten the neutrality of the Internet. They are  opposed by citizens groups who are calling on MEPs to close the loopholes in the  Telecoms Package Second Reading.

 

Liberty Global is the latest telco to throw its hat in the anti-net neutrality ring, with a statement in support of its colleagues at AT&T and Verizon. In a statement to run with its European Parliament seminar today, Liberty Global calls for limitations on regulatory intervention in respect of ‘network management practices'.  The AT&T amendments are about trying to stop European regulators taking the kind of action that the FCC was able to take in the Comcast case, where a netwwork operator was restricting lawful services on the Internet and the FCC told it to stop.

 La Quadrature du Net has issued a dossier which debunks the telco arguments.  The campaigning group has also done a full analysis of the Telecoms Package Second Reading amendments,  and issued a statement in  which it says "there is still a blatant lack for clarification and no concrete guarantee that Telecom operators won't be allowed full control over the Internet". It  calls on MEPS in the  IMCO and ITRE committees responsible for the Second Reading to be vigilant and to "patch" the final  loopholes left open in the Package.

 Liberty Global also   expresses concerns about the cooperation amendment (Universal Services directive, Article 33.3 in the common position). In its statement, it says:

"... the Council Common Position still refers to a cooperation procedure requiring network

AT&T gets 2 out of 5 in Harbour report

Monica Horten
Catetory: Telecoms package
Published: 01 March 2009

Why does IMCO want to limit  users ? AT&T lobbied for users to be explicitly told by the telcos about  restrictions  or limitations on their Internet service.  The revised Harbour  report has done as they asked for. It risks setting Europe on the slippery slope away from a neutral network towards one which discriminates and ultimately stagnates.

 

The revised Universal Services directive (Harbour report) in the Telecoms Package Second Reading, released on Friday, wants users to be told about "any limitations imposed by the undertaking, in accordance with national law, on a subscriber's ability to access, use or distribute information or run applications or services". It also specifies that the user should be told "the type of content, application or service concerne,  individual applications or services, or both".

The European Parliament's IMCO  committee which prepared the report has replaced the Council's text which stated that users should be told about the network operator's traffic management policies. The reason for the switch is simply that the users won't understand the language of traffic management polices. In terms of the  meaning of the law, however, it is exactly the same thing.

The changes were lobbied for by AT&T, which put forward 5 amendments dealing with "traffic management policies" and which raised the concern of citizens groups as being a threat to net neutrality. Although  2 out of 5 would normally represent

Is copyright still in the Telecoms Package?

Monica Horten
Catetory: Telecoms package
Published: 24 February 2009

An amendment planted by the French film industry remains firmly at the centre of the Telecoms Package.

 

I occasionally get asked if copyright is still in the Telecoms Package, and  now that we have the Council's Common Position, and the Second Reading has officially begun, it is worth reviewing the case. Recent legal developments in Member States, such as the Irish music industry  v Eircom case in Ireland, also help to shed light on the issues.

The answer is that copyright is  still there. Some of the provisions have been weakened, and the Package -  as in the Council's Common Position of 9 February -   no longer contains the  onerous "lawful content" provision  that risked making  ISPs liable  for Internet  content. The issue now is how much weaker the provisions are, and what they would or would not permit.  

To be clear, the Telecoms Package copyright amendments do not directly mandate graduated response/3-strikes. The copyright amendments have the effect of putting in place  the  legal foundation stones for 3-strikes. They were intended to get around certain provisions in EU law, which prevent ISPs from accepting liability for content and copyright infringement, and which also prevented them from divulging information about their subscribers to third parties. They are inter-linked, and  it is necessary to interpret them as a linked series rather than individually - as explained in a report by the European Data Protection Supervisor .

The central amendment calling for ISPs to "cooperate" with rights-holders, that was drafted by the French film industry

About Iptegrity

Iptegrity.com is the website of Dr Monica Horten, independent policy advisor: online safety, technology and human rights. Advocating to protect the rights of the majority of law abiding citizens online. Independent expert on the Council of Europe Committee of Experts on online safety and empowerment of content creators and users.  Published author, and post-doctoral scholar, with a PhD from the University of Westminster, and a DipM from the Chartered Institute of Marketing.  Former telecoms journalist,  experienced panelist and Chair, cited in the media eg  BBC, iNews, Times, Guardian and Politico.