Faustian Fudge

Legislators around the world now shaping the new laws concerning digital copyright infringment are considering not only how to catch infringers and what penalties they should face, but who should impose those penalties. The EU has been debating this last issue.

The European Parliament’s second reading of the ‘Telecoms Package’ is due next Tuesday. The Telecoms Package consists of numerous amendments to existing EU telecommunications directives and they are hotly opposed by some, such as Blackout Europe. Amendment 46, to the 2002 Framework Directive, has been subject to some radical last-minute rewriting. The ITRE Committee (for Industry, Research and Energy) voted on it last week, adopting this wording: ‘no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities’. So, for example, a court order would be required before cutting off internet access. Yesterday (29 April), the formulation of what IpTegrity terms a ‘Faustian pact’, was agreed instead:

Measures taken regarding end-users' access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, including in relation to privacy, freedom of expression and access to information and the right to a judgment by an independent and impartial tribunal established by law and acting in respect of due process in accordance with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Hardly a step in the direction of clarity. The words ‘judicial authorities’ and ‘prior ruling’ have been struck through, replaced by ‘respecting rights including in relation to the right to a judgment’. So you’ve got a right but is it now up to you to appeal to a court after access has been cut? France had opposed the previous wording - their intended new law is to be administered by HADOPI, a non-judicial body, but it is unclear whether HADOPI fits the tribunal described above. The UK government may also be pleased: the recent proposals for handling copyright infringement have envisaged roles for a variety of non-judicial bodies, including ISPs, a Digital Rights Agency and Ofcom, potentially taking action before a court ruling.

If you think this is Faustian or simply a fudge, there is still time to contact your MEP….