Sharing music over the internet could become a criminal
offence if some members of the European Parliament get their way in
a debate this week concerning a draft law designed to stamp out
mass-pirating and counterfeiting of digital products.
Instead of focusing on law breakers as the European Commission
intended, the parliament's legal affairs committee wants to stretch
the proposal to include peer-to-peer exchanges of digitised music.
The proposed changes to the intellectual property rights
enforcement directive collide head-on with citizens' rights to
privacy, and have angered consumer groups and legal academics.
ISPs are also opposed to the changes to the bill because they
would be required to snoop on their subscribers or face fast-track
injunctions in the courts to reveal private information. A
provision of the enforcement bill would subject ISPs to criminal
sanctions if they failed to provide information to copyright
holders about subscribers who may be infringing copyrights.
''The balance between privacy of subscribers and the duty to
co-operate with right holders seeking to protect their intellectual
property that was reached in the e-commerce directive could be
changed by this directive,'' said BT European regulatory manager
Tilmann Kupfer.
No one on either side of the debate doubts that counterfeiting,
the main target of the new law, is a major problem. According to
the European Commission, counterfeiting and piracy cost the union
€8bn annually in lost economic output between 1998 and 2001.
According to the International Federation of Phonographic
Industries, a third of all music CDs sold around the world last
year were counterfeit.
The music industry joined forces with the film industry last
year to complain that the European Commission's proposal, which
limited enforcement measures to breaches of copyright "for
commercial purposes", was too soft.
Even though the proposal granted rights holders criminal legal
tools to pursue pirates across the EU, this was not enough for
music and film companies, because it ''failed to introduce urgently
needed measures to hold back the epidemic of counterfeiting".
"The commission's proposal fell short of international
requirements agreed at the World Trade Organisation," said Ted
Shapiro, director of the European Motion Picture Association.
International intellectual property protection rules called
Trips (Trade-Related Aspects of Intellectual Property Rights) of
the WTO urges WTO members to impose criminal sanctions, such as
imprisonment, for people who counterfeit goods for commercial
gain.
Shapiro admitted that by stretching the proposed EU law to catch
file shares, the European parliament is going beyond the Trips
agreement. "You could say the amended version is Trips-plus," he
said. Nevertheless he supported the parliament's changes, calling
them "a useful tool."
The European NetAlliance, which includes BT, Deutsche Telekom,
Vodafone Group, MCI, Verizon Communications and Yahoo, have warned
of the risks that a widening of the directive would pose. "It must
be ensured that consumers are not placed on the same level as
parties that violate copyright for commercial gain or as members of
organised crime," the alliance said.
Similar words of warning were voiced by legal experts, who
expressed concern that EU lawmakers have gone too far in their
efforts to protect copyright holders by pushing for a law that goes
beyond piracy and counterfeiting.
William Cornish, a professor at the University of Cambridge, and
Josef Drexl, Reto Hilty and Annette Kur from the Max Planck
Institute in Germany wrote in an article published in the European
Intellectual Property Review: "Haste and political pressure from
interest groups do not make for good counsel when it comes to
regulating complex and sensitive fields like that of sanctions and
procedural measures for IP (intellectual property)
protection.''
Consumer groups have also weighed in. "We are worried that the
current European parliament text would allow consumers to be
prosecuted, judged and condemned as harshly as a person making and
selling millions of copies of CDs," said the Bureau Européen des
Unions de Consommateurs. "We do not see why a consumer downloading
music from the Internet to make a private copy for personal and
noncommercial use should be prosecuted at all."
National governments are also unhappy about criminalising file
sharers. One EU diplomat said the Council of National Government
Ministers may agree to stretch the directive to cover file sharers,
but only if criminal sanctions against P-to-P exchanges of content
such as music and movies are dropped.
The council, parliament and the commission have held four
meetings this year to try to reach a swift conclusion to the
debate. All three institutions want the directive agreed to at
first reading in the parliament before March when the
parliamentarians leave Brussels to campaign for re-election.
The EU diplomat admitted that efforts to push the directive
through before the recess could be "overly hasty". He criticised
the commission for not doing its homework before proposing the
directive a year ago. "A little more consultation would have been
useful," he said.
The parliament hoped to put the proposed directive to a vote
towards the end of February. However, the topic has already been
added and removed from the plenary agenda several times. Many
critics of the bill say it would be sensible to delay it again.
Paul Meller writes for IDG News Service