How is it that a single amendment about copyright can bring an important economic review of telecoms law to a grinding halt?
The EU review of the telecommunications framework – generally known as the Telecoms Package – has been delayed in its passage through the EU legislature following a vote in the European Parliament on May 6. The cause of the delay is an amendment to the Framework directive, which in all practical terms is intended to put a spanner in the works of a new French law on copyright enforcement.
The amendment is the subject of a disagreement between the two institutions which co-legislate in Europe – the European Parliament, which represents the people of Europe, and the Council of Ministers, which represents the governments of the European member states. The lines of disagreement run deep and they are entirely political. It is not so much what the amendment actually says as what it stands for.
It is reasonable to question how such an amendment got into the draft law in the first place. Telecoms law is about the conveyance of electronic signals, and the related business operations; it is not about content nor about copyright. In reality, convergence of telecommunications and media mean that there are now joint interests of content and carriage.
However, the amendment was not the result of any policy decision based on convergence logic. It was a reaction to the attempts by certain interest groups representing the creative industries to insert provisions into the Package which would have underpinned copyright enforcement measures in respect of the Internet – measures very similar to the ones being introduced in France by President Sarkozy’s government. These measures are known as graduated response, or ‘3-strikes’ and they seek to deal with downloading and peer-to-peer filesharing by sending users a series of warnings, and ultimately sanctioning them by cutting them off the Internet. The Telecoms Package appears to have been targeted in order to force compliance from ISPs.
The first draft of the Telecoms Package was prepared by the European Commission, DG Information Society, and it did not contain anything about copyright. However, when the draft was presented to the European Parliament in November 2007, it mysteriously contained two additional amendments, dubbed the ‘copyright hooks’ and believed to have been inserted by aides close to Commissioner Viviane Reding. One ‘hook’ said that Internet providers should include a new term in the users contract – this term was that they must respect copyright. The other ‘hook’ was an option in the Authorisation Directive, that Internet providers could be asked to support copyright protection as a term of being permitted to do business.
What happened next was that further amendments to support copyright protection were inserted as the Package went through the committee stages in the European Parliament. These copyright amendments can be traced through the Parliamentary documents to certain MEPs who are known to favour the interests of the creative industries and the artists and authors collecting societies. A key amendment contained the words ‘national regulatory authorities and other relevant authorities may promote cooperation between undertakings providing electronic communications networks and/or services and sectors interested in the promotion of lawful content in electronic communication networks and services’. The concept of ‘lawful content’ , plus amendments concerning end-user contracts and requirements to underpin graduated response, were also embedded throughout the Package, with implications for broadband providers in respect of enforcing copyright.
At this point there is a ‘back-story’. In April 2008, the MEP Guy Bono won a vote in the European Parliament which expressed opposition to graduated response measures, and in particular to cutting people off the Internet as a punishment. The ‘Bono report’ vote was not legislative, but it is held up as a key positioning statement.
Guy Bono continued to oppose graduated response, and an amendment tabled by him to the Telecoms Package, stated that the fundamental rights of Internet users could not be restricted, without a prior judicial ruling. This amendment was numbered 138 in the First Reading of the Parliament, and henceforth it has been known as ‘Amendment 138’. It was carried in the First Reading vote on September 24 2008 with a huge majority : 573 for; 74 against.
The wording of Amendment 138 was directly targeted at the French government’s Creation and Internet law, which implemented the graduated response measures. It proposed the setting up of a public authority to handle the sanctioning of users – the Hadopi – which would base its decisions on evidence received from rights-holder organisations (who are named in the law). The Hadopi was therefore not a court, and would not comply with Amendment 138.
At the time of the First Reading, the French held the Presidency of the European Union. And they had wanted to get the Package through into law as quickly as possible. When Amendment 138 was carried, President Sarkozy himself intervened, writing a letter to the President of the European Commission, Jose Manuel Barroso. In the letter, President Sarkozy told Mr Barroso that it was ‘fundamental that Amendment 138 should be rejected by the Commission’. However, this move backfired, because the Commission may not, under EU rules, take orders directly from a member state government.
The French used their Presidency to try to remove Amendment 138 from the Package, and significantly, it was not in the Common Position document put forward by the Council of Ministers in November 2008. Under EU rules, the Common Position is the starting point for the Second Reading.
In the Second Reading – which ran informally from January (formal start was 18th February) to May this year – further issues about the content of the Package emerged. Specifically, so-called net neutrality and provisions in the text in relation to resticting Internet users access to services and applications were covered.
During the Second Reading, the process followed was one known as ‘trialogues’ – these are tri-partite discussions between the Parliament and the Council, facilitated by the Commission. They wanted to reach an agreement on the text, which all could sign off by April, before the European elections. They cited an urgent need for legislative certainty in respect of investment in next-generation networks. However, it was known that the French government’s Creation and Internet law was being put through the legislature in parallel, and the French ideally wanted the Telecoms Package out of the way so that they could progress with their domestic legislation.
These talks were held behind closed doors and the process was not very transparent. The documents which have emerged show that Amendment 138 was marked as ‘politically sensitive’. It is understood that the French continued to insist that the Amendment should stay out, with the support of the UK government. When it became apparent that deletion was not acceptable, the Council proposed an alternative ‘compromise’ text. This text was heavily debated, and it was argued that it created a different meaning and therefore was unacceptable. In particular, the alteration of ‘judicial authority’ to ‘independent and impartial tribunal’ was challenged. The question was asked whether or not this change permitted the Hadopi.
It is also understood that there was a lot of pressure put on the Parliament to agree to the Council’s changes, but the Parliament remained divided on the issue. There were internal arguments and debates and, in parallel, the Parliament was receiving thousands of e-mails from concerned citizens telling MEPs to support Amendment 138. On one particular day, the Parliament received an e-mail a minute. This helps to explain why the Package turned from an industry issue into an electoral issue.
It came to a head in the Second Reading vote on May 6. The Greens, together with the ALDE (Liberal) group, pressed for a change to the voting list. This apparently insignificant move meant that Amendment 138 had a greater chance of being carried – which is what happened.
Amendment 138 will not be accepted by the Council – which was due to adopt the Package on June 12th. The effect of the Second Reading vote is that the whole Package will go to a Third Reading. The whole Package comprises three bundles of interlinked directives. The first bundle contains the Framework, Authorisation and Access directives, and within it is Amendment 138. The second bundle comprises the Universal Services and Users Rights directive and the e-Privacy directive. Then finally there is a new directive to set up a pan-European regulatory body called BEREC.
Contrary to some suggestions, the Third Reading is a normal process and happens to quite a few directives, especially where there is controversy or disagreement. The Telecoms Package dossier is one of the first that will confront MEPs when they go to Brussels to take up their seats for the next Parliament. A conciliation committee will be formed over the summer, and the first meeting with the Council is scheduled for September 29th. There is date of 15 December this year for a Third Reading vote.
The Council continues to oppose Amendment 138. The countries opposing it include France, Italy, the UK and Romania – the UK apparently does not want any reference to human rights in the Package.
The political effect of Amendment 138 has been to stall policy considerations of graduated response measures within the European Commission and to some extent, in member states. It is believed to be a determining factor in how the EU may negotiate within the ACTA – Anti-counterfeiting Trade Agreement – where copyright enforcement and the Internet is on the table.
The wider effect of Amendment 138 is to open up a public debate about the issue of Internet and fundamental rights. It is far from certain what such a concept would mean in practice, but it is apparent that the log-jam surrounding Amendment 138 needs to be cleared, before any other regulatory changes for the telecoms industry can move forward.
4. The national regulatory authorities shall promote the interests of the citizens of the European Union by inter alia:
(h) applying the principle that no restriction may be imposed on the
fundamental rights and freedoms of end-users, without a prior ruling by the
judicial authorities, notably in accordance with Article 11 of the Charter of
Fundamental Rights of the European Union on freedom of expression and
information, save when public security is threatened in which case the ruling
may be subsequent.
The ‘compromise’ text proposed by the Council:
3a. Measures taken regarding end-users’ access to or use of services and applications
through electronic communications networks shall respect the fundamental rights
and freedoms of natural persons, including in relation to privacy, freedom of
expression and access to information and the right to a judgment by an
independent and impartial tribunal established by law and acting in respect of due process in accordance with Article 6 of the Convention for the Protection of
Human Rights and Fundamental Freedoms.
Monica Horten is a journalist and academic. She is working on doctoral research on EU communications policy at the University of Westminster, Communications and Media Research Institute. She also writes the iptegrity blog: http://www.iptegrity.com which is tracking the Telecoms Package.