Digital Agenda: Caution required for the future EU Net policies

Strasbourg, May 19, 2010 – Today, with the release of Neelie Kroes’ Digital Agenda, the European Commission is unveiling major policy orientations regarding Internet-related policies. Several leaked drafts of the document revealed heavy pressures from various special interest groups. While the general outcome of the final document is encouraging, the crucial question of interoperability and open standards was eventually arbitrated in favour of US software vendors’ positions. On IPR enforcement and cybercrime, the worst has been avoided but some very ambiguous wording remains.

Creative Content

The announced Digital Agenda makes interesting proposals on the collective management of copyright in order to mitigate the control of entertainments companies on the circulation of the cultural works. The Commission is also aware of the need to move ahead to ensure that out-of-prints and orphan works will be available to European Internet users. How much these objectives will actually result in a better balance remains to be assessed at the time of implementation.

Another rather positive aspect is the deletion of references to the immediate strengthening of dogmatic copyright enforcement. When earlier working versions the text suggested that the Commission would strengthen the enforcement of copyright online, the final text provides that such an eventuality will only take place after a review of the 2004 directive on “intellectual property rights” enforcement – the transposition of which has led to much controversy in Member States – and an extensive consultation with stakeholders. ¹Earlier working versions read that the Commission would “reinforce the protection against commercial scale online violations of intellectual property rights by a review of the Directive on the enforcement of intellectual property rights in 2011”, the text now provides that “on the basis of the review of the Directive on the enforcement of intellectual property rights, and following extensive stakeholder dialogue, report by 2012 on the need for additional measures to reinforce the protection against persistent violations of intellectual property rights in the online environment”.

After years of rights holders’ blatant conservatism, this is a first timid step, but it might pave the way to a reasonable and balanced evolution of copyright in the EU if it leads to a truly open debate on the question, and creates the conditions for a possible policy-shift.

Cybercrime

As stated in the analysis of a previous draft, there have been rumours that Home Affairs Commissioner Cecilia Malmström was pressuring Neelie Kroes in order to include in the Digital Agenda wording supporting Internet blocking and filtering. Commissioner Kroes’ Directorate General apparently refused to share the blame on imposing such dangerous and inappropriate measures, but a final addition of very ambiguous language illustrates that pressure:

(…) to tackle sexual exploitation and child pornography, alert platforms can be put in place at national and EU levels, alongside measures to remove and prevent viewing of harmful content.

This language could lead to dangerous interpretations. While removing pedopornographic content from the Internet is the only way to effectively fight child abuse worldwide, “preventing viewing” could refer to filters installed and controlled by end-users or network-wide blocking of websites. As pointed out by many experts, Network-wide blocking of websites raises serious concerns regarding fundamental rights and freedoms and should be disregarded by EU lawmakers.

The rest of the document presents a constructive approach to tackling online criminality by calling for increased cooperation between the relevant government entities in charges of tracking down criminal organizations on the Internet.

Net neutrality

The Digital Agenda does not say anything new on Net neutrality. The Commission merely underlines that a consultation will take place over the summer, and that a report to the Parliament will follow by the end of the year.

Interestingly, the importance of Net neutrality for freedom of expression is explicitly recognized.

Interoperability

Unfortunately, comparison with working draft shows that previous references to open standards has been deleted in much of the document. Open standards play a core role in enabling innovation, free competition as well as users’ freedom on the Internet and the digital environment as it ensures that new technologies will remain accessible to all parties. It is also a key component of the security of computer systems.

The removal of openness in the Digital Agenda seems to be a clear indication of the dangerous influence of the lobbies of proprietary software manufacturers on the Commission. While the IDABC European Programme previously adopted an internationally-endorsed and demanding definition of open standards, the deletion of the reference to openness in the Digital Agenda is a clear defeat for innovation and competition on the Internet.

“The whole Digital Agenda is the partly equivocal result of ongoing tensions within the Commission, but it also reveals intense pressure coming from corporate lobbies. While parts of the agenda are somewhat disappointing for open standards and Free Software users, the proposals are quite encouraging overall. That said, the Digital Agenda is not binding for the future of EU legislation. It should be an invitation for every citizen to ensure that this constructive document turns into a continued commitment to the public interest. We congratulate Mrs Kroes and hope that she will be able to stand strong against special interests in order to pave the way for a true knowledge society, respectful of people’s fundamental freedoms”, says Jérémie Zimmermann, spokesperson for citizen-advocacy group La Quadrature du Net.