European Copyright Law: Collusion for the Control of the Net

In the coming days, a college meeting of the European Commissioners will take place to decide the future of European copyright policy. This revision takes place in conditions that raise severe concerns from a democratic perspective and put fundamental rights at risk, especially when it comes to the Internet.

The “Internal Market” General Directorate, under the responsibility of French Commissioner Michel Barnier, just completed a public consultation process. This consultation took the form of comments on a report purporting to be an “impact assessment” of the European copyright enforcement policy, and of the 2004/48/CE “IPRED” directive, also known as the Fourtou directive¹It was adopted in first reading with Ms. Janelly Fourtou acting as rapporteur for the European Parliament, while her husband was then CEO of Vivendi-Universal and presided the International Chamber of Commerce that engaged in a global lobbying effort today embodied in the BASCAP lobby.. In reality, this document recycles arguments and proposals directly fed by the entertainment industry: that culture is on the verge of demise due to online piracy, and that the only solution lies in more repressive measures specifically targeting the Internet.

This obsession with repression is clear when one also considers that the Commission secretly negotiated the ACTA anti-counterfeiting agreement over a three-year period with 12 other countries. Disguised as a basic trade agreement, ACTA actually compels its signatories to create criminal sanctions for copyright and patent infringements, again with a particular focus on activities taking place on the Internet.

After the failure of mass-repression against online file-sharers, these same interest groups are now attempting to put repressive policies at the core of the network. By turning technical intermediaries (access providers, online service providers) into a private copyright police, these intermediaries would then be compelled to censor their networks and services by filtering their users’ communications to prevent potential infringements.

Such a reversal of the legal framework would inevitably cause severe harm to fundamental freedoms, and in particular the right to privacy and to freedom of expression. By encouraging the circumvention of judicial authorities in order to set up direct blocking and filtering of the Internet and its services, European decision-makers would be laying the ground for a censorship infrastructure similar to that used for political purposes in authoritarian regimes.

Such a policy would run decisively contrary to our democratic values and the rule of law. It can only be explained by the blindness – if not the laziness – of European policy-makers listening solely to those segments of the entertainment industry whose economic models are still based on controlling copies. The Commission continues for instance to relay industry-originated figures that the U. S. Government Accountability Office has described in a recent report²http://arstechnica.com/tech-policy/news/2010/04/us-government-finally-admits-most-piracy-estimates-are-bogus.ars as mere fantasy.

Any consideration of the fact that file-sharing could be beneficial for culture, its diversity or its economy, is systematically set aside. A growing number of independent studies nonetheless show that the largest file-sharers are also the largest consumers of commercial offerings³A non exhaustive list of such studies (governmental, academic, or even from the French three-strike HADOPI authority!) may be found at the following address: http://lqdn.fr/p2pstudies – in the same way that lending library users are avid book buyers. Non-market use and commercial use are not mutually exclusive, but rather complementary. In much the same way, innovative models for financing creation based on the legalisation of sharing, such as “Kulturflatrate” or “Creative Contribution” supported in France by the Création-Public-Internet⁴http://www.creationpublicinternet coalition, are systematically ignored by European decision-makers.

The toxic influence of the entertainment industry on the European law-making process is now reaching new extremes with the appointment of Maria Martin-Prat, previously in charge of legal and institutional matters with the musical majors lobby IFPI, as head of the copyright unit in the Internal Market DG of the European Commission.

European citizens and their representatives must adamantly oppose this unhealthy collusion threatening fundamental freedoms and the Internet’s very infrastructure. It is unforgivable that the Commission has chosen to encourage the implementation of an Internet control and censorship infrastructure, rather than initiate the long overdue reform of copyright laws unadapted to new uses and technology.

Jérémie Zimmermann and Philippe Aigrain, co-founders, La Quadrature du Net