By Dugie Standeford for Intellectual Property Watch
The European Parliament on Thursday urged governments not to authorise shut-off of internet access in cases of suspected copyright piracy. The subject of the vote, an own-initiative report on promoting European cultural industries by French Socialist Parliament Member (MEP) Guy Bono, has stirred up a hornet’s nest of debate over the liability of internet service providers for online infringement.

Although not binding, the action could hamper European Union and national efforts to adopt France’s “three-strikes” solution to the problem, said Philippe Aigrain of “Squaring the Net,” a French grass-roots organisation that monitors government attempts to regulate aspects of the Internet.

[Editor's Note: The report was adopted (see 'cultural industries') by 586 votes in favour to 36 against, with amendments. They voted 314 to 297 on amendment 22 to request member states not to authorise shut-off as part of the graduated response to fight copyright violations, according to sources.]

Lawmakers overwhelmingly approved the report, which calls for the European Commission to “rethink the critical issue of intellectual property from the cultural and economic point of view and to invite all those active in the sector, involving notably telecom operators and Internet service providers, to join forces and seek solutions that are equitable to large and small stakeholders…” The report also notes that “criminalising consumers who are not seeking to make a profit is not the right solution to combat digital piracy.”

In January, the Culture and Education Committee killed amendments urging internet service providers (ISPs) to fight piracy by enforcing the terms and conditions of their service agreements or cutting off subscribers who refuse to stop infringing, and requiring service providers to filter, block or otherwise help counter copyright pirates.

But the question of whether ISPs should shoulder more responsibility for protecting copyright continues to simmer. Last year, French ISPs agreed to try filtering infringing files (IPW, European Policy, 27 November 2007) and French President Nicolas Sarkozy is pushing a “graduated response” – dubbed “three-strikes” – mechanism by which ISPs would first notify suspected pirates to stop and then terminate service if they do not. Information Society and Media Commissioner Viviane Reding has broached the idea of a similar approach at EU level.

Following the culture committee vote, Swedish Conservative MEP Christofer Fjellner and former French Socialist Prime Minister Michel Rocard offered language urging the Commission and member states to avoid enacting laws that clash with civil liberties and rules of proportionality, such as the interruption of internet access. Civil liberties organisations strongly supported the text; the French government said restricting or temporarily suspending internet access should be available as a way to deal with illegal downloaders if it respects democratic principles.

Is Three-Strikes Out?

Lawmakers approved the amendment Thursday. Some wanted a split vote separating the general principles from the explicit rejection of interruption of Internet access, Aigrain said. The strategy backfired when both parts of the amendment passed, he said. The message from MEPs was that they “knew what it was about and decided on this basis to reject the principle itself of the three-strikes approach,” he said.

Many of the report’s recommendations stress the need to protect intellectual property as a driver of growth in the creative sector, said Frances Moore, IFPI (International Federation for the Phonographic Industry) executive vice president.

“However, one badly drafted, rushed-through amendment” was adopted which contradicts the rest of the text, Moore said. If the aim of the report is to protect creative content, including online, “we should be looking at all options available in the fight against copyright theft,” she said. Instead, she added, the amendment discards some options without even a proper debate.

The vote is a strong signal in France’s direction, Squaring the Net said. During debate on his report Wednesday, Bono criticised “certain member states whose repressive measures are dictated by industries” that are incapable of changing their economic model to meet the changes of the information society. Cutting off internet access is “quite out of proportion” to the objective of copyright protection, Bono said, and will have grave repercussions in a society where access is an imperative right of social inclusion.

The vote could also force Reding to rethink her approach, Aigrain said. Including the three-step regime in her upcoming cultural strategy communication would “require an extraordinary contempt for the Parliament,” he said. Under normal circumstances, that concept is now dead at EU level, he said.

Lawmakers clearly rejected graduated response as a solution to internet piracy, said Erik Josefsson, Electronic Frontier Foundation European affairs coordinator. Other solutions are in the pipeline, including voluntary licensing and new business models for remuneration of content owners, he said. There is a great deal of creativity everywhere but with the major rights-holders associations, Josefsson said.

The graduated response approach, said Monique Goyens, director general of the European Consumers’ Organisation, “goes against some of consumers’ fundamental rights,” notably the right of an accused to a fair trial.

Dugie Standeford may be reached at info@ip-watch.ch.