Does The European Commission Really Think The Internet Is A 'Value Tree' That Requires A 'Transmission Belt Of Euros'?

from the forward-to-the-past dept

Currently, the European Commission is conducting a public consultation on the review of the EU copyright rules. Unusually, the deadline for this was extended from the original 5 February to 5 March so you still have time to make a submission if you wish -- it's open to everyone:

All stakeholders are welcome to contribute to this consultation. Contributions are particularly sought from consumers, users, authors, performers, publishers, producers, broadcasters, intermediaries, distributors and other service providers, Collective Management Organisations, public authorities and Member States.

Optimists might see the extra time as a sign that the Commission is genuinely interested in gathering as wide a range of public views on this subject as possible. But a post from Paul Keller raises the possibility that this is just window-dressing, and that it has already made up its mind about what it will do on copyright regardless of what the public thinks. As he explains:

In recent weeks officials at the European Commission's Internal Market and Services Directorate General (which is in charge of copyright policy) have been passing around this diagram of what they call the 'Internet Ecosystem value tree':

Here's Keller's summary of what that shows:

The Internet Ecosystem value tree implies that the primary purpose of the Internet -- like that of all distribution channels that came before it -- is to channel content from producers (the Authors/Artists/Audiovisual and Record Producers/Newspapers and Books Publishers/Broadcasters/Other Creative Industries in the schema above) to a separate group of people called Consumers. In exchange for this the Consumers will pay Distributors and Internet Platforms money for their services, which is then augmented with advertising income. Distributors and Internet Platforms use parts of their income to pay for the content.

What the Commission implies here is that if this transmission belt of Euros does not work, then the entire Internet ecosystem will die off and as a result any public policy aimed at protecting the digital environment must ensure that content producers are paid.

Of course, that's a frighteningly retrogressive vision of the Internet that seems to regard it as simply the latest incarnation of television. As Keller points out:

Projects like Wikipedia, uses such as text and data mining, online access to cultural heritage and educational resources, and transformative use of the Internet do not follow the same logic as the traditional content industry value chains. Here limited user rights and long terms of protection become problematic and increased enforcement translates into chilling effects.

At the same time all of these types of uses are exactly what makes the Internet special and drives its potential to accelerate innovation and to democratize access to knowledge, tools and culture. The Internet is the first mass medium that is simultaneously enabling market driven uses, uses that are driven by public policy objectives (such as education or access to culture), and uses driven by people's desire to create, collaborate and contribute to the commons.

The rest of his post makes similarly insightful points, and is well-worth reading. If the European Commission's Internal Market and Services Directorate General really is thinking of the Internet as a "value tree" that requires a "transmission belt of Euros", let's just hope someone there reads Keller's post and realizes what a terrible mistake that would be.

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Filed Under: copyright, european commission, european union, internet

Brazil, EU Take Pride In Temporarily Avoiding The NSA With New Joint Undersea Cable Run

from the undersea-blowback dept

Long before there was Edward Snowden (or even an NSA), there have, unsurprisingly, been government intelligence operatives gifted at tapping communications networks, be they via satellite dish or undersea cables. In fact, before Snowden, back when most people (including most of the press) treated total surveillance as the incoherent ramblings of paranoids, there was Echelon. The highly-confidential program, jointly operated by the U.S., U.K., Australia, Canada and New Zealand, truly took off in the 1960s, and focused on using any means necessary to gather communications intelligence. The program started with a focus on intercepting satellite lines, then shifted to undersea cable taps, microwave transmission intercepts, and other options.

Currently, Brazil (justly none too happy with our voracious surveillance appetites) relies on U.S. undersea cables to carry almost all of its communications to Europe. That should change soon with a joint announcement that Brazil and the EU are building an undersea communications cable from Lisbon to Fortaleza to further reduce Brazil's reliance on the United States:

"At a summit in Brussels, Brazilian President Dilma Rousseff said the $185 million cable project was central to "guarantee the neutrality" of the Internet, signaling her desire to shield Brazil's Internet traffic from U.S. surveillance. "We have to respect privacy, human rights and the sovereignty of nations. We don't want businesses to be spied upon," Rousseff told a joint news conference with the presidents of the European Commission and the European Council. "The Internet is one of the best things man has ever invented. So we agreed for the need to guarantee ... the neutrality of the network, a democratic area where we can protect freedom of expression," Rousseff said."

To pretend the NSA lacks the ability to simply tap this new cable run, nab that same data at any of a million interconnection points, or just get it handed to them by other intelligence agencies is perhaps either naive, a bit of political salesmanship for the project, or both. Still, it's another instance of how the NSA revelations have significantly tarnished international/U.S. relations, resulting in a large number of countries making it a point of pride to avoid using U.S. technology. That's not going to be particularly great for U.S. industry, and we're likely only just seeing the tip of the iceberg.

Filed Under: brazil, echelon, european union, nsa, surveillance

European Parliament Committee Says No To TAFTA/TTIP Deal Without Respect For Data Privacy, But Fails To Offer Snowden Asylum

from the talking-tough dept

Earlier this week we mentioned that Edward Snowden has agreed in principle to contribute to the European Parliament's inquiry into the mass surveillance of EU citizens. The body leading that is the Civil Liberties, Justice and Home Affairs (LIBE) committee, which has been interviewing many other witnesses in order to formulate what the EU's response should be. Yesterday the LIBE committee met and agreed its final recommendations, which include some pretty dramatic demands -- like this one:

Parliament's consent to the final Transatlantic Trade and Investment Partnership (TTIP) deal with the US "could be endangered as long as blanket mass surveillance activities and the interception of communications in EU institutions and diplomatic representations are not fully stopped and an adequate solution for data privacy rights of EU citizens, including administrative and judicial redress is not found", MEPs say.

Parliament should therefore withhold its consent to the TTIP agreement unless it fully respects fundamental rights enshrined in the EU Charter, the text adds, stressing that data protection should be ruled out of the trade talks.

If the European Parliament agrees, that could be a big problem, because on the US side, there is an equally strong insistence that data protection must be included in any TAFTA/TTIP text. But the LIBE MEPs don't stop there; here are more potential bombshells:

MEPs call for the "immediate suspension" of the Safe Harbour privacy principles (voluntary data protection standards for non-EU companies transferring EU citizens' personal data to the US). These principles "do not provide adequate protection for EU citizens" say MEPs, who urge the US to propose new personal data transfer rules that meet EU data protection requirements.

The Terrorist Finance Tracking Programme (TFTP) deal should also be suspended until allegations that US authorities have access to EU citizens' bank data outside the agreement are clarified, say MEPs. The EU-US data protection framework agreement to be struck in spring 2014 must ensure proper judicial redress for EU citizens whose personal data are transferred to the US, they add.

Without the Safe Harbor program, it will be illegal under European law for companies like Google and Facebook to take EU citizens' personal data outside the EU, which would make it hard to run those services there. Presumably this threat is designed to encourage the US authorities to come up with something better than the current Safe Harbor system, which essentially offers no protection for the personal data of EU citizens when it is transferred to the US.

One interesting proposal concerns whistleblowers:

The resolution urges the European Commission to examine whether a future EU law establishing a "European whistleblower protection programme" should also include other fields of EU competence "with particular attention to the complexity of whistleblowing in the field of intelligence". EU member states are also asked to consider granting whistleblowers international protection from prosecution.

But a big omission is the lack of any formal call to offer political asylum to Edward Snowden, something many people had hoped for. However, Euronews reports that the Rapporteur (subject expert) for this report, Claude Moraes, believes that offering asylum is not possible because of the way that political powers are apportioned between the European Union and its member states:

"The European Union does not have the power to grant asylum as the European Union, so this is something for individual member states," he told euronews. "And the issue of asylum within this report therefore does not become a relevant issue for the European Union."

Finally, the LIBE committee rapped a few national knuckles for complicity in the NSA's global surveillance activities:

The UK, France, Germany, Sweden, the Netherlands and Poland should clarify the allegations of mass surveillance -- including potential agreements between intelligence services and telecoms firms on access to and exchange of personal data and access to transatlantic cables -- and their compatibility with EU laws, it says.

Other EU countries, in particular those participating in the "9-eyes" (UK, Denmark, France and the Netherlands) and "14-eyes" arrangements (those countries plus Germany, Belgium, Italy, Spain and Sweden) are also urged to review their national laws and practices governing the activities of intelligence services, so as to ensure that they are subject to parliamentary and judicial oversight and public scrutiny and that they comply with fundamental rights obligations.

MEPs deem bilateral "anti-spying" arrangements concluded or under negotiation between some EU countries (the UK, France and Germany) and the US as "counterproductive and irrelevant, due to the need for a European approach to this problem".

It's worth emphasizing that all these demands are only recommendations at this stage: the final vote in the European Parliament will take place on 12 March, and could see amendments to any of them, as well as deletions and additions (for example, the EU Greens have said that they will try to get the European Parliament to offer asylum to Snowden then.) Nonetheless, the report sends a very strong signal that MEPs on the LIBE committee are extremely unhappy about the revelations of mass surveillance being conducted across Europe. What exactly that translates into as far as real-world actions are concerned, remains to be seen.

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Filed Under: edward snowden, eu, european union, privacy, tafta, trade agreements, ttip

Europe's Highest Court Says Linking Doesn't Require Permission

from the party-like-it's-1994 dept

Recently, Techdirt has reported on a number of important judgments from the Court of Justice of the European Union, the EU's highest court. Here's another one that represents a good win for common sense. It concerns hyperlinking to copyright materials held on another site (pdf). Here's the background:

Press articles written by several Swedish journalists were published on a freely accessible basis on the website of the Göteborgs-Posten. Retriever Sverige, a Swedish company, operates a website that provides its clients with clickable internet links (hyperlinks) to articles published on other websites, including the site of the Göteborgs-Posten. Retriever Sverige did not, however, ask the journalists concerned for authorisation to establish hyperlinks to the articles published on the site of the Göteborgs-Posten.

The key issue that the court had to consider was whether these hyperlinks constituted an act of communication to the public within the meaning of EU law, because if so, that would give the authors of those articles the right to authorize or prohibit their transmission. In its ruling, the Court of Justice found that such links were indeed an act of communication, but with one important caveat:

The Court points out, however, that the communication must be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders at the time the initial communication was authorised.

Applying that to the present case:

As the works offered on the site of the Göteborgs-Posten were freely accessible, the users of Retriever Sverige's site must be deemed to be part of the public already taken into account by the journalists at the time the publication of the articles on the Göeborgs-Posten was authorised. That finding is not called into question by the fact that the internet users who click on the link have the impression that the work is appearing on Retriever Sverige's site, whereas in fact it comes from the Göteborgs-Posten.

That means:

the owner of a website, such as that of Retriever Sverige, may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site.

However, the "freely accessible basis" part is crucial, as the court goes on to note:

The position would be different, however, in a situation where the hyperlink permits users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site's subscribers only, since in that situation, the users would not have been taken into account as potential public by the copyright holders when they authorised the initial communication.

It's a sensible ruling that's obviously welcome, but it's pretty ridiculous that in 2014 we are still having this kind of discussion about whether the basic mechanisms of the Internet and Web are compatible with copyright law. The default answer for all such questions should be: if it isn't, then copyright clearly needs updating to reflect the realities of the digital world.

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Filed Under: european union, linking

PhRMA Wants EU Put On US's 'Priority Watch List' For Plans To Disclose Basic Safety Info About Drugs

from the yeah,-that's-reasonable dept

We've written many times about how the USTR uses its Special 301 Report to bully smaller countries into toeing the US line. One of the most influential organizations providing input into who should sit on this year's naughty step is PhRMA, the Pharmaceutical Research and Manufacturers of America. James Love points out that its submission this year is notable for the following demand:

PhRMA requests that the EU be placed on the Priority Watch List for the 2014 Special 301 Report, and that the U.S. Government continue to seek assurances that the problems described herein are quickly and effectively resolved.

The European Union is accused of three basic sins, including ineffective patent enforcement -- rather implausible given Europe's extremely strong patent regime in this area -- and daring to take into account the cost of relevant generics when setting medicine prices. But the most interesting complaint is the following:

EMA data disclosure policy: PhRMA and its member companies are very concerned that current practices of the European Medicines Agency (EMA) and proposals being advanced through the EMA and the European parliament to provide virtually unrestricted access to and publication of biopharmaceutical companies' clinical trial regulatory submissions and data will substantially harm patient privacy, the integrity of the regulatory system, and incentives for pharmaceutical research and development. Failing to protect confidential commercial information contained in regulatory submissions is inconsistent with the EU's treaty obligations contained in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and primarily benefits competitors who wish to free-ride off of the investments of innovators. We are especially concerned that proposals to disclose regulatory clinical study reports (CSRs) in their entirety -- a class of document that the EMA has traditionally considered to be commercially confidential information -- will allow competitors to submit innovators' documents to gain regulatory approval in non-European countries.

Techdirt wrote about the EMA's plans to make clinical trials data for drugs available (including the key clinical study reports) back in November. As that post explained, this is basic safety data -- not "confidential commercial information" as PhRMA claims in its Special 301 submission. These are simply the scientific facts about a drug that establish what side effects it has, and whether it offers sufficient benefits to be approved for sale.

Drug companies that are confident their products are safe should welcome the opportunity to prove that in a completely transparent manner, and to benefit themselves in multiple ways from this general opening-up. PhRMA's desperate attempt to get the USTR to interfere with the European Union's plans would suggest that some of its members may have something to hide -- a view that recent scandals involving big pharma tend to support.

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Filed Under: european union, patents, pharmaceuticals, special 301 report, ustr
Companies: phrma

Is The EU's Proposed Reform Of Music Licensing Doomed From The Start?

from the signs-aren't-good dept

Music collection societies often figure in Techdirt thanks to their attempts to wring licensing payments from people on absurd grounds, like trying to make them pay for playing music to horses, or for singing old folk songs. But in Europe, there's another issue. Because each country has its own music collection society, digital music startups wishing to operate across Europe must negotiate not one, but dozens of separate licenses – a major obstacle to overcome.

Even the European Commission has noticed that this is a problem, and has proposed bringing in a new directive to tackle it:

New digital technologies are opening up great opportunities for creators, consumers and businesses alike. Increased demand for online access to cultural content (e.g. music, films, books) does not recognise borders or national restrictions. Neither do the online services used to access them. This is where collecting societies come into play, in particular in the music sector, where they collectively manage the licensing of copyright-protected music tracks for online use on behalf of composers and lyricists and collect and redistribute to them corresponding royalties.

However, some collecting societies struggle to adapt to the requirements of the management of rights for online use of musical works, in particular in a cross-border context. As a result of today’s proposal, those collecting societies willing to engage in the multi-territorial licensing of their repertoire would therefore have to comply with European standards. This would make it easier for service providers to obtain the necessary licences for music to be distributed online across the EU and to ensure that revenue is correctly collected and fairly distributed to composers and lyricists.

That reference to collecting societies that "struggle to adapt to the requirements of the management of rights for online use of musical works" is a pretty obvious dig at organizations like GEMA, which has been extremely inflexible when it comes to online licensing of music in Germany. So we can probably expect vociferous resistance to any change from many of the collecting societies that have enjoyed milking their legal monopolies to the full. Surprisingly, though, some artists don't seem too enthusiastic either:

A proposed EU law to give musicians more rights over their royalties has angered bands like Radiohead and Pink Floyd, who accused the European Commission of breaking promises to tackle the problem of musicians' missing pay.

The issue here seems to be that collection societies have a tendency to hold on to money that they should be distributing to artists, also referred to by the European Commission. The fact that musicians have already gone on the attack suggests that we are going to see some fierce lobbying coming from multiple directions. However, it may be that this directive is doomed to fail for quite another reason.

Neelie Kroes, Vice-President of the European Commission, and certainly one of the most rational/radical members there, has written an extremely interesting blog post about the new proposals. She begins:

Last week’s vote on ACTA -- although hardly a surprise for those who’ve been following – was a reminder about the big debate currently going on, about how to balance intellectual property rights with Internet freedoms

For me it’s about making it easier for artists to promote their work widely, and make a living from it: without constraining the immense innovation of the online world. And, for me, the current copyright system achieves all of those objectives poorly.

That’s why I’m convinced we need to reform copyright for the digital age. For me, merely making enforcement more and more heavy-handed is not the solution -- especially if it results in draconian measures like cutting off internet access.

But a good start – and I hope a principle on which everybody could agree – is that we should make it easier to legally access the content you love.

That's a very welcome statement, coming as it does from one of the most senior EU politicians. Significantly, she also has some words for the European Parliament regarding the proposed directive on music licensing:

our proposal needs to be agreed by the European Parliament and Council. Some previous attempts by us to modernise copyright rules -- like our relatively modest proposal on orphan works -- were significantly watered down by the legislator. This time I hope the Parliament and Council are more aware of the views citizens have expressed: that people love the openness of the Internet, and want easier access to more content.

That "modest proposal on orphan works" was gutted by the relevant European Parliament committee, as a previous Techdirt post explained. One key reason why the final form of the directive turned out so badly is that its rapporteur (the EU parliamentarian with overall responsibility for the legislation) was the copyright maximalist Marielle Gallo, who was not only one of the few to vote in favor of ACTA, but went so far as to brand ACTA dissent as a "soft form of terrorism".

Unfortunately, it seems that Gallo will also be the rapporteur on this new music licensing proposal. Assuming she gets her way, that pretty much guarantees that any directive that emerges from the long process of political wrangling won't do much to address the deep underlying problems with music licensing. It may even make them worse, judging by what happened with the hostage works directive under her guidance.

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Filed Under: acta, collection society, european union, licensing
Companies: gema

EU Parlamentarian Gallo: ACTA Dissent 'A Soft Form Of Terrorism'

from the she-finally-said-it dept

Marielle Gallo is probably best known for the Gallo Report, which Techdirt described back in 2010 as a "similarly draconian intellectual property enforcement" to ACTA, with which it has much in common. So it's no surprise that Gallo has been one of the few vocal supporters of ACTA, and it was widely expected that the EU's Legal Affairs (JURI) committee she chairs would support her draft opinion calling for ACTA to be ratified. As we now know, that didn't happen, and JURI formed one of five committees that all recommended that ACTA should be rejected.

Gallo must be a little taken aback by this turnaround: from easily pushing through her Report with its harsh proposals against copyright infringement, she now finds herself increasingly marginalized within the European Parliament on the subject of ACTA precisely because of its disproportionate measures designed to deal with copyright infringement online. A fascinating interview in PC INpact (original in French) gives us an insight into her state of mind at the moment..

As you might expect, she speaks of the "the disinformation campaign we have been enduring for the past months", the standard line taken by the European Commission and its allies. She also makes the interesting claim that "We're supposed to represent citizens, but since they are busy with other things, we are supposed to think for them!" But she reserves her choicest words for the people who have dared to disagree with the pro-ACTA camp:

It's not only a disinformation campaign. It's a soft form of terrorism that frightens people. People are being scared. It's a fantasy. ACTA has become a fantasy. And that, that's propagated by the whole Internet network.

So there we have it. Anyone who dares to disagree with those politicians doing all that thinking are "soft" terrorists, making subversive use of "the whole Internet network" to spread their "fantasy." It was probably inevitable that someone would play the politicians' trump card -- terrorism – against ACTA opponents; and it's no surprise that it was Marielle Gallo that finally did so.

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Filed Under: acta, european union, gallo report, juri, marielle gallo, terrorism

EU Commissioner Reveals He Will Simply Ignore Any Rejection Of ACTA By European Parliament Next Week

from the democracy,-what's-that? dept

The day before the EU's International Trade committee (INTA) recommended that the European Parliament should reject ACTA, the EU commissioner with responsibility for the treaty, Karel De Gucht, had given a speech to its members, trying to win them over. Although it was short, it turns out to be highly revealing about the European Commission's future ACTA strategy. Here's what he said:

If you decide for a negative vote before the European Court rules, let me tell you that the Commission will nonetheless continue to pursue the current procedure before the Court, as we are entitled to do. A negative vote will not stop the proceedings before the Court of Justice.

That is, whatever happens next week, the European Commission will wait for the European Court of Justice (ECJ) to rule on whether ACTA is compatible with EU law. If it is found to be incompatible, De Gucht admits that rather than accept this ruling, the European Commission will try to find some trick to circumvent it:

If the Court questions the conformity of the agreement with the Treaties we will assess at that stage how this can be addressed.

This implicitly confirms that the referral was simply a way to buy time, rather than an honest question about ACTA's legality.

Even assuming the ECJ rules eventually that ACTA is compatible, there could still be a problem if, in the meantime, the European Parliament has voted not to ratify it. Here's what De Gucht says he would do in that case:

First, I would consider proposing some clarifications to ACTA. For example on enforcement in the digital environment. We could look at this in the light of the discussions you will have had on legislative proposals which the European Commission is set to put before the Parliament and the Council. Or for example, we could seek to clarify further the meaning of 'commercial scale'.

Remember that ACTA is now signed, and cannot be altered; so De Gucht is instead trying to fob off European politicians with this vague idea of "clarifications" -- as if more vagueness could somehow rectify the underlying problems of an already dangerously-vague treaty. That's clearly just a sop; here's the real plan:

Second, once we will have identified and discussed these possible clarifications, I would intend to make a second request for consent to the European Parliament. Whether the Parliament will consider it under this legislature or the subsequent one, will be for you to decide.

This is an extraordinary admission. De Gucht says that even if the European Parliament unequivocally refuses to ratify ACTA next week, he will simply ignore that result, and re-submit it at a later date.

In other words, De Gucht won't accept the idea that the European electorate, through their representatives in the European Parliament, might possibly want to reject something they were not allowed to know about until late in the negotiating process, and to which they were unable to provide any meaningful input. In his view, ACTA must be passed, and ACTA will be passed -- whatever anyone else thinks about it.

Let's hope that the members of the European Parliament bear in mind this undisguised contempt for the democratic process in Europe -- and for them -- when it comes to voting on ACTA next week, and any time thereafter it might be re-presented to them under De Gucht's shameful plans.

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Filed Under: acta, ecj, european commission, european union, karel de gucht

Fifth EU Committee Recommends Rejection Of ACTA By European Parliament

from the how-many-times-do-we-have-to-say-no? dept

Another major milestone has been achieved in the push to get ACTA rejected by the EU: a fifth parliamentary committee has recommended that the European Parliament should refuse to ratify it when it is put to the vote on July 4th, effectively killing it in Europe. The other committees – on legal affairs, civil liberties, industry and international development – recommended rejection a few weeks ago, but today's vote by the international trade committee (INTA) was seen as the most important.

That was reflected during the vote. For example, the hall in which the meeting was held was unusually full, with a large contingent from the press. Unexpectedly, an EU politician who is not aligned with the main groupings turned up to vote, adding to the uncertainty about the final result.

The main INTA report recommended that the European Parliament should reject ACTA, but three amendments were tabled: two to accept ACTA immediately, and one to recommend waiting until after the European Court of Justice had handed down its judgment -- something not expected for a year or two.

At the last minute, the first two amendments were withdrawn, leaving only the call for a postponement of the European Parliament vote. This was rejected by the committee; but then somebody pointed out that there were more votes than people -- a problem EU committees have had before. This meant that that the vote had to be taken again, adding to the already-high tension in the meeting, to confirm that the amendment was indeed being rejected.

Finally, the INTA committee voted on the report containing the recommendation to reject ACTA, and passed it by 19 votes to 12. That was a wider margin than expected, but isn't necessarily representative of what will happen in the plenary vote in July. The European Commission will be making one last effort to convince EU politicians to vote for ACTA, and lobbyists will doubtless be out in strength during the next two weeks.

Gaining the support of five EU committees out of five is an extraordinary achievement -- six months ago, most commentators expected ACTA to sail through the European ratification process without much trouble. European politicians themselves have said that this change of heart is entirely due to the massive wave of protests against ACTA, both on the streets and in the form of thousands of emails and phone calls.

Although the battle is not over yet, it will be hugely significant if such citizen action does succeed in stopping ACTA, since it would send a message to politicians that the views of the public cannot be ignored when it comes to such major policy decisions about the Internet. In this respect, it would complement the similar revolt over SOPA and PIPA in the US -- something that made the current string of European victories against ACTA possible.

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Filed Under: acta, european commission, european parliament, european union, inta, pipa, sopa