From "three strikes and you're out" to "no strikes and you're in"?

Readers of this weblog might just have missed the European Parliament recommendation of 26 March 2009 to the Council on strengthening security and fundamental freedoms on the Internet (2008/2160(INI)). The IPKat's friend, dynamic ace reporter Tara Train has however been busily summarising it for the benefit of his many readers. 

Right: needing a break from cat imagery and punning captions, the IPKat decided to give himself a treat for a change

Tara's report runs as follows:

"Many will be aware of the content industry’s push for legislation requiring ISPs to play a role in the protection of copyright works online. ISPs, they claim, have a responsibility to rights-holders since copyright infringement is facilitated over their networks. Anti-piracy lobbyists have been hard at work trying to convince governments to introduce laws compelling ISPs to implement the graduated response system, better known as the ‘three strikes’ rule. Under this system, ISPs will be required to monitor and log the internet activity of their customers, sending written warnings to those who infringe and, in the case of persistent infringers (those who have already received two warnings) cutting off their internet access for one month to one year.  

These proposed actions seem to flout European Directives 2000/31 (the E-commerce Directive) and 2002/58 (the Directive on privacy and electronic communications); the former provides that ISPs may not be put under a general obligation to monitor information which passes through their servers (see (47)), and the latter protects European citizens’ privacy over electronic communications.  According to a recent report by the European Parliament -- overwhelmingly adopted by MEPs with 481 votes in favour, 25 against and 21 abstentions -- the ‘three strikes’ rule now seems to be in breach of human rights as well. 

The Security and Fundamental Freedoms on the Internet Report emphasises the importance of the internet for promoting democratic initiatives and political debate, ensuring freedom of expression and dissemination of knowledge, as well as developing international communication and cultural understanding. Importantly, the report claims that ‘e-illiteracy will be the new illiteracy of the 21st Century; ensuring that all citizens have access to the Internet is therefore equivalent to ensuring that all citizens have access to schooling, and such access should not be punitively denied by governments or private companies’.

The Report acknowledges that cybercrime (including piracy) is rife and surveillance technologies exist which could eliminate a great deal of it, but states that ‘the overriding interest of protecting citizens’ fundamental rights should determine the limits and precise circumstances under which such technologies may be used by public authorities or companies’, and ‘the combating of crime must be proportionate to the nature of the crime’.

When the EU Parliament synonymises internet use with freedom of expression, education, and democratic participation, it seems highly unlikely that cutting off an individual’s internet (and consequently limiting their ability to enjoy these fundamental rights) will be considered a proportionate response to a few instances of copyright infringement.

It is recommended that the Council

‘proceed to the adoption of the directive on criminal measures aimed at the enforcement of intellectual property rights, following an assessment, in the light of contemporary innovation research, of the extent to which it is necessary and proportionate, and while simultaneously prohibiting, in pursuit of that purpose, the systematic monitoring and surveillance of all users’ activities on the Internet, and ensuring that the penalties are proportionate to the infringements committed; within this context, also respect the freedom of expression and association of individual users and combat the incentives for cyber-violations of intellectual property rights, including certain excessive access restrictions placed by intellectual property holders themselves’.

Sarkozy and the content industry, one presumes, will not be pleased".

The IPKat loves that bit about "an assessment, in the light of contemporary innovation research, of the extent to which it is necessary and proportionate, and while simultaneously prohibiting, in pursuit of that purpose, the systematic monitoring and surveillance of all users’ activities on the Internet, and ensuring that the penalties are proportionate to the infringements committed".  This means "go away and find a perfect solution to the existing problem which has no political, economic or cultural side effects and leaves everyone totally happy" -- a tall order indeed.   The ever-cynical Merpel muses, I wonder if we'll end up with the 'three strikes' rule anyway: it may currently have every legal defect imaginable but at least people understand it, and it's perfectly legal if you pass a law to say that it's a legitimate exception to the basic principles with which it is currently in conflict.  And if we worried about principle, would we really be extending copyright in sound recordings to 95 years ...?