[Advocacy Advisors] EU Policy Monitoring Report March

Tue Apr 1 16:50:06 UTC 2014

Wikimedia and the EU

March Report

tl;dr

Brussels politics is generally calming down ahead of the elections with the
notable exception the crucial net neutrality vote this week. Meanwhile the
Court of Justice of the European Union ruled that web site blocking orders
do not have to be specific.

This and past reports: https://meta.wikimedia.org/wiki/EU_policy/Monitor

ToC

1. CJEU: "UPC Telekabel Wien" Decision

2. TTIP: EU-US Talks on Web Hosting Liability

3. Net Neutrality: Decision Imminent

4. Big Fat Brussels Meeting vol. 2

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#CJEU #telekabel #blocking

1. European Court of Justice states that website blocking orders do not
need to be specific

Why is this relevant?

It funnels into the rules and regulation of how, when and by whom web sites
can be blocked. It therefore is important for the internet at-large. If
ISPs become more prone to general blocking and filtering, every website
would become more susceptible to being "caught in the net". It is therefore
good to follow the developments, as this will also have implications on the
Notice and Takedown Directive being currently written.

What happened?

The Court of Justice of the European Union (CJEU) was asked by the Austrian
Supreme Court for a preliminary ruling on an injunction case (Telekabel
Wien had been ordered to block a website providing unlicensed copies of
films). So far, the legal status quo in the EU was that web site blocking
orders had to be specific, meaning that the court has to define the
technical method by which it is to be implemented by the internet service
provider (ISP).

The CJEU ruled [1][2] that this does not need to be the case and that
blocking orders might be general. In order to ensure balance between all
parties rights (ISPs, users, rights holders), stated that ISPs can become
exempt of liability if "all reasonable measures" are taken. Furthermore,
users need to be given a legal way to challenge measures taken by ISPs,
just like rights holders.

This reading departs from the Advocate-General's opinion [3], who had
written, that in order to balance all fundamental rights, blocking orders
had to be specific (i.e. defining the technical blocking method). His
position also mirrors previous CJEU decisions against general filtering and
blocking practices, like Scarlet vs. Sabam [4].

What comes next?

Obliging the ISPs to take "all reasonable measures" while looking for an
appropriate balance between the rigths of copyright holders and these of
users puts them in a very tricky position. More lawsuits seem inevitable.

Fears from civil society groups include, that the relationship between ISPs
and users is handled in private contracts. In order to avoid lawsuits, ISPs
could simply change their user agreements, meaning a weakened position of
internet users, that would prevent the balance seeked for by the court.

Legally, the case will be decided by the Oberster Gerichtshof in Vienna
(Austrian Supreme Court), which will have to be in line with the CJEU
decision.

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#TTIP #liability

2. Online content liability to play a role in TTIP negotiations

Why is this relevant?

The negotiations between EU and USA on a new trade and investment agreement
will seemingly include rules on content liability for internet hosting and
service providers.

What happened?

According to a leak [5] published by German newspaper Die Zeit [6], a
proposal to discuss liability the exclusion of hosting and service
providers from content liability has been tabled by the European
Commission.

According to the E-Commerce Directive [7], internet providers in the EU are
not liable for the information transmitted. This had previously been an
issue while negotiating past international agreements, most notably ACTA.

What comes next?

The leaked document shows that the European Commission is also asking for
"co-operation" in these matters, which might indicate a request to exchange
information about the implementation of the US Digital Millenium Copyright
Act. This is to been seen in direct relation to the Notice and Takedown
Directive, currently being drafted at DG MARKT and crucial for how content
could be removed off the internet in the future.

We are following both, possible IP and internet implications of TTIP and
any development of the future Notice and Takedown directive.

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#netneutrality

3. Crucial network neutrality vote to be held on 3 April

Why is this relevant?

It is a fundamental internet issue. Briefly, the legislation will determine
what agreements between content providers and telecoms will be legal in the
EU. The current draft of the regulation permits "specialised services" in
contrast to the best effort principle. If these are allowed and defined too
broadly, it would effectively result in an internet where content providers
with more money can secure preferential access to end users. Start-up
projects without financial backing (like Wikipedia was some years ago)
would hence be disadvantaged. If, on the other hand, "specialised services"
are defined too narrowly or even prohibited, it would mean the end to
zero-charge projects (like Wikipedia Zero).

What happened?

The Commission proposal on net neutrality [8] officially promotes the
concept, but contains many loopholes. The European Parliament report from
the ITRE (Industry) Committee failed to close most of them. [9] Now, four
parliamentary groups have tabled amendments [10][11] ahead of the final
vote that would seriously limit the possible exceptions. The split lines
run along Socialists & Democrats, Greens, the Left Group and Liberals
proposing the changes and the conservatives (EPP, ECR) endorsing the ITRE
version. However, most groups might end up with a split vote, making the
outcome hard to predict

What comes next?

The vote will take place on Thursday, 3 April 2014 during the plenary
session in Strasbourg. It is most likely to come up in the afternoon. [12]

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#wikimedia #FKAGEU

4. Big Fat Brussels Meeting vol. 2

In order to finetune our strategy, we invite everyone to a second meeting
of the Free Knowledge Advocacy Group EU in Brussels [13]

As last year [14], we will hold a two-day "Big Fat Brussels Meeting". The
meeting is open for each and everyone. Prior knowledge of advocacy or
internal Wikimedia policies is not required - a good diversity of views can
be very productive.

This years meeting is going to be held on a Thursday and Friday (April 24
and 25). We apologise for those of you who can't take weekdays off, but the
meeting coincides with a public event on "Cultural Heritage and Mass
Digitisation" on Thursday, co-organised by us and UNESCO. [15]

The two panels of the World Book and Copyright Day debate include speakers
from the European Commission, Wikimedia, UNESCO, the British Library and
the Federation of European Publishers. We believe tying-in the two events
makes very good sense and will give participants an opportunity to engage
hands-on in Brussels EU affairs.

Please put your name on the participant list on Meta-Wiki or send me an
email if you intend to participate, so we can organise an adequate meeting
spaces.

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[1]
http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-03/cp140038en.pdf

[2]
http://curia.europa.eu/juris/document/document.jsf?text=&docid=149924&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=124196

[3]
http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30dbac0c48ea1e8d4c6c80fde160c7bce637.e34KaxiLc3qMb40Rch0SaxuNax50?text=&docid=144944&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=123341

[4]http://curia.europa.eu/juris/liste.jsf?language=en&num=C-70/10

[5]
http://www.documentcloud.org/documents/1030459-eu-kommission-position-in-den.html#document/p1

[6]
http://www.zeit.de/wirtschaft/2014-02/freihandelsabkommen-eu-sonderrechte-konzerne

[7]https://en.wikipedia.org/wiki/Electronic_Commerce_Directive_%28EU%29

[8]
https://www.accessnow.org/blog/2013/09/17/commission-proposal-fails-to-deliver-promise-of-net-neutrality

[9]http://edri.org/bad-leadership-kill-open-internet-europe/

[10]
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+AMD+A7-2014-0190+234-236+DOC+PDF+V0//EN

[11]
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+AMD+A7-2014-0190+237-244+DOC+PDF+V0//EN

[12]
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fTEXT%2bAGENDA%2b20140403%2bSIT%2bDOC%2bXML%2bV0%2f%2fEN&language=EN#TF5

[13]
https://meta.wikimedia.org/wiki/EU_Policy/Big_Fat_Brussels_Meeting_Vol._2

[14]https://meta.wikimedia.org/wiki/EU_Policy/Big_Fat_Brussels_Meeting

[15]https://meta.wikimedia.org/wiki/EU_policy/World_Book_and_Copyright_Day<http://curia.europa.eu/juris/liste.jsf?language=en&num=C-70/10>
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