As drafts of the long awaited Intellectual Property Rights Strategy are being scrutinised by lobbyists before its release tomorrow (24 May), fears have been stoked that the EU will endorse a growing trend to hold Internet service providers (ISPs) liable for piracy, forcing them to punish their users without the involvement of a judge or jury.
Digital rights campaigners argue that the EU is about to weaken citizens' fundamental rights and give way to an already growing trend of censorship across the EU.
"The EU has criticised Turkey for its Internet censorship but at least Turkey has specific laws on this, instead of the lawless situation that would be created by the [European] Commission's current proposals" Joe McNamee from digital rights lobby EDRi told EurActiv last week.
Cooperation?
The strategy, out tomorrow and obtained by EurActiv, will herald a revision of the EU's Intellectual Property Rights Enforcement Directive, saying that it aims to "tackle infringements at their source and, to that end, foster cooperation of intermediaries, such as Internet service providers".
Though the implications of the term "cooperation" may not be apparent to the average user, ISPs and NGOs lobbying on their behalf argue that its inclusion in the strategy will force providers to filter websites at the entertainment industries' behest, restrict access and even kick users off a network if caught pirating content three times.
Their fears are not without precedent as Spain, Ireland and the UK have recently decided to tackle piracy with access restrictions. In Spain and the UK the laws have been widely protested in the countries' courts.
The European Commission disagrees: "We do not plan to follow one or other national model but rather try to share best practice and develop the most efficient and proportionate approaches," Chantal Hughes, a spokesperson for the EU executive, told EurActiv in an email.
The UK has recently passed a digital rights bill which allows providers to cut the access of users caught making illegal downloads. In Ireland, the incumbent provider Eircom has agreed to filter sites believed to allow illegal downloads. In Spain, access restrictions and take-downs have been mandated by the recent Sinde law.
What about users' rights?
The worrying aspect of all of this, argue critics, is that, except Spain, none of the above countries require any independent legal advice before content believed to be illegal is taken down and users are cut off.
"Judicial intervention is needed to determine the legality of content and provides important safeguards", Vicky Hanley-Emilsson from the association for competitive telecoms, ECTA, told EurActiv.
The UN Special Rapporteur for the Freedom of Opinion and Expression reportedly agrees. Frank la Rue is due to release a report in two weeks which will criticise the EU for deputising ISPs as quasi-law enforcement authorities, claims a source who did not wish to be identified.
To all appearances, the US seems to be on the same page as la Rue. Joe McNamee from EDRi points to the US' recent Strategy for Cyberspace, which lambasts ISP liability for spreading a culture of fear.
"Cultures of fear discourage others in the community from using new technologies to report, organise and exchange ideas. The same protections must apply to Internet service providers and other providers of connectivity, who too often fall victim to legal regimes of intermediary liability that pass the role of censoring legitimate speech down to companies," reads the text.
The industry is also upset at the projected cost of filtering. In the UK, BT calculates that the adopted law would cost the UK ISP industry £1 million a day, adding £24 per year to broadband bills for all UK customers. Some speculate that such measures could discourage shops and public bodies from hosting open wifi.
But are ISPs making a fuss over nothing? In Ireland, a source who wished to remain anonymous revealed that the number of warnings sent to infringers by Eircom was very low. And the likelihood of their being caught three times - users should be kicked off the network after a third infringement - was equally low, the source added.
Question marks over piracy's economic impact
Internet lobbyists also accuse the Commission of doing sloppy research by using studies which make a convincing case on the economic harm of physical counterfeiting but not Internet piracy.
Nevertheless, ample surveys online do show that piracy has many fans. Record companies cite the widespread phenomenon of piracy as the single greatest threat to their industry, while pirates say companies should get more creative about their offerings.
In the EU's IPR strategy, figures demonstrating piracy's impact on industry appear to come mainly from losses on balance sheets and not an estimation of the scale of piracy which is admittedly hard to ascertain.
In spite of being on the opposite side of the fence, a lobbyist for artists' rights, Kelvin Smits, from the musicians' NGO Younison admits it is nearly impossible to get hard evidence on the scale of online piracy and its economic impact.
The strategy quotes the 2010 IFPI Music report, which claims the EU has comparatively low digital music sales compared to its rivals. While sales of legal digital offers in the EU comprise 14%, this figure is 44% in the USA and 25% in Japan.
SACEM, the French society which collects royalties on behalf of record companies and artists, was asked to provide its most recent figures on online piracy but the company did not manage to reply before the publication of this story.
The Commission said it is currently conducting its own study into the impact of online piracy, the results of which should be published before the end of the year.
Claire Davenport
