archief:edri_gram_nieuwsbrief:15_12_10
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+ | ====== EDRI-gram Nieuwsbrief - 15 december 2010 ====== | ||
+ | ===== 1. Rule of law in the hands of private companies. Wikileaks is just the start. ===== | ||
+ | Private-sector attempts to undermine and attack the ability of WikiLeaks to function on the Internet have attracted much attention. | ||
+ | Their domain name (// | ||
+ | |||
+ | The truth is that there have been years of " | ||
+ | |||
+ | Even before WikiLeaks had been heard of by anyone in Europe except geeks, the European Commission had launched proposals for European web hosting companies to take extra-judicial action to delete websites without judicial authority (helpfully suggesting that they give themselves licence to do so in their terms of service), online trading platforms to ban people accused of counterfeiting from online trade, Internet access providers to filter peer to peer traffic in order to delete anything that might not be authorised by copyright owners and mobile phone companies to block alleged illegal content from their networks. | ||
+ | |||
+ | This is not just a European phenomenon. The EU negotiated the Anti-Counterfeiting Trade Agreement with countries around the world. This agreement suggests extra-judicial " | ||
+ | |||
+ | Unfortunately, | ||
+ | |||
+ | The increasing willingness of the largest Internet providers to interfere with their customers' | ||
+ | |||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | |||
+ | ===== 2. Data Retention Directive evaluation: expect the unexpected? ===== | ||
+ | The evaluation of the controversial Data Retention Directive takes an unexpected turn, for the worse. At a crucial one-day conference in Brussels on 3 December 2010, aimed at gathering input for the evaluation, long-term critic of the Directive Commissioner Malmström (DG Home Affairs) surprisingly announced that "data retention is here to stay". | ||
+ | |||
+ | The statement not only disregards legal developments since 2005, the damage done by telecommunications data retention to 500 million Europeans and the lack of evidence that such a measure is necessary and proportionate. On top of that, the Commissioner undermines the entire evaluation process and the evidence-based decision making itself. To great risk, because our fundamental freedoms and the very nature of our free and open societies is at stake. | ||
+ | |||
+ | Nevertheless, | ||
+ | |||
+ | "We shouldn' | ||
+ | |||
+ | * [[https:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | |||
+ | ===== 3. Commission finds solution on notice and takedown and it seeks the problem ===== | ||
+ | On 15 December 2009, the European Commission held its third meeting on " | ||
+ | |||
+ | After the previous meeting, the European Commission received written comments jointly from EDRi and EuroISPA as well as a variety of industry players. Six months later, the Commission finally reacted to that feedback, sending participants revised recommendations on the evening before the meeting. | ||
+ | |||
+ | The Commission tried to open discussions on its recommendations for extra-judicial takedown of material that has been accused of being illegal, on grounds of containing child abuse, racism/ | ||
+ | |||
+ | In the afternoon session, DG Information Society of the European Commission explicitly stated that some Member States do not devote adequate resources to addressing online child abuse and that it is "at the bottom of the (priority) list" in some European countries. As a result, the Commission is focusing on takedown of the criminal websites and is developing statistical tools to assess the speed with which sites are deleted. | ||
+ | |||
+ | Contradicting repeated statements about the " | ||
+ | |||
+ | The Commission then invited an anti-spam initiative in order to allegedly demonstrate how Internet intermediaries can regulate the online environment. | ||
+ | |||
+ | The meeting closed with industry stressing the lack of clarity about where the process was meant to go, the relevance of the " | ||
+ | |||
+ | The Commission may or may not provide more guidance on whatever problem that this process is supposed to solve, but asks for industry input on this. Comments are requested by the end of January, with a working group meeting planned for February and another " | ||
+ | |||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | |||
+ | ===== 4. ECJ to discuss the case of eBay & trademark infringement ===== | ||
+ | In the case introduced by L' | ||
+ | |||
+ | However, in case electronic marketplaces, | ||
+ | |||
+ | In 2007, L' | ||
+ | |||
+ | In an earlier case this year dealing with the conflict between trademark infringement and contextual adevertising brought by a group of luxury goods companies in March 2010, the ECJ ruled that Google could continue selling advertisements linked to searches for brand names. Similarly, the Advocate General now believes eBay can continue to purchase keywords-based advertising in order to direct users of Internet search engines to its site (including L' | ||
+ | |||
+ | It seems both eBay and L' | ||
+ | |||
+ | L' | ||
+ | |||
+ | The Advocate general' | ||
+ | |||
+ | Also, in the US, the Supreme Court refused to hear an appeal in a similar case, thus supporting the ruling made by the Appeal Court on 1 April 2010 in the case brought by jeweller Tiffany against eBay in 2004 and consequently making the ruling definitive. The Court of Appeal' | ||
+ | |||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | |||
+ | ===== 5. Council text on web blocking - breaking the law to fight crime ===== | ||
+ | The Council of Justice Ministers adopted a text on web blocking at its recent meeting in Brussels on 2-3 December 2010. The Belgian Presidency, for domestic reasons, felt obliged to adopt a text during its term of office. As a result, the outcome is a hastily cobbled together text that makes little legal sense and whose main value is to finally betray the real meaning behind the proposal. | ||
+ | |||
+ | The adopted text can be divided into two main parts: | ||
+ | |||
+ | 1. //" | ||
+ | |||
+ | Under the UN Child Rights Convention, Member States are already under a binding legal obligation to take all appropriate measures to prevent the " | ||
+ | |||
+ | However, the text is very clear about the obligation to create an infrastructure which is capable of implementing the blocking of web pages (Member States shall (...) ensure that the blocking of access to webpages (...) is possible (...) in their territory.) | ||
+ | |||
+ | The reference to " | ||
+ | |||
+ | * a. The European Convention on Human Rights - Article 10 //"The exercise of these freedoms (...) may be subject to such formalities, | ||
+ | * b. The European Commission' | ||
+ | * c. The International Covenant on Civil and Political Rights. Article 19.3 //"The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, | ||
+ | * d. The 2003 Interinstitutional Agreement on Better Lawmaking - Article 17: //"The Commission will ensure that any use of co-regulation or self-regulation is always consistent with Community law (...) These mechanisms will not be applicable where fundamental rights or important political options are at stake or in situations where the rules must be applied in a uniform fashion in all Member States."// | ||
+ | |||
+ | 2. The second element of the agreement is also noteworthy. It requires that the individuals accused of uploading depictions of serious crimes against children are informed that their site is blocked and //"as far as possible, are informed of the possibility of challenging it."// Such an obligation would only be necessary if it is assumed that there would be no investigation or prosecution of the individuals that uploaded the site. In Belgium, this is done by providing a fax number on the blocking page that will not be available to the person who, by definition, will be not be in Belgium and therefore not able to see the page. | ||
+ | |||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | |||
+ | ===== 6. French law Loppsi 2 under debate again ===== | ||
+ | The so-called Loppsi 2 draft law (loi d' | ||
+ | |||
+ | The National Assembly is continuing the long and controversial debate on the draft text which might allow the blocking, at the level of ISPs, of websites considered by the authorities as undesirable, | ||
+ | |||
+ | Article 4 of the text referring to the blocking of child pornography sites is considered as a Trojan horse. The concerns are that the filtering may be extended to other types of sites out of political reasons as it happened with FNAEG (Fichier National Automatisé des Empreintes Génétiques - Automated National File of Genetic Prints) which started initially by gathering the DNA data of sexual criminals and ended up in containing the DNAs of more than 1,5 million people. | ||
+ | |||
+ | Many organizations (even child protection ones) have expressed several times the idea that, while supporting the fight against child pornography sites, they also believed that the measures proposed by the French government were disproportionate and most of all inefficient. | ||
+ | |||
+ | La Quadrature du Net has brought as example the attempts to forbid the hosting of Wikileaks in France. "This shocking maneuver is a new demonstration of the government' | ||
+ | |||
+ | The organisations belonging to CLEJ (Collectif Liberté Egalité Justice - Collective for Freedom, Equality and Justice), warn over the fact that the draft text " | ||
+ | |||
+ | After going through the National Assembly, the text will go back to the Senate at the beginning of 2011. According to Gérard Larcher, President of French Senate the debate next year will be difficult and " | ||
+ | |||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | |||
+ | ===== 7. Privacy Platform Meeting ===== | ||
+ | On 1 December 2010, the Privacy Platform held a meeting on the Commission' | ||
+ | |||
+ | The meeting was well attended and overall, it followed standard storyline. In regard to the Communication and future steps for the revised Data Protection Directive, Mr. Kohnstamm urged that more ambition was needed, and listed five general principles that should be kept in mind. First that class action is a necessity, the patchwork of data protection rules should be a thing of the past (particularly in the post-Lisbon EU), the duty of controllers should be strengthened, | ||
+ | |||
+ | Peter Hustinx, echoing many statements in support of the Article 29 WP Chairman, emphasized the need to take a bold approach, particularly in terms of enforcement, | ||
+ | |||
+ | The issue of real consent was discussed throughout the meeting, where Marc Rotenberg from the Electronic Privacy Information Center (EPIC), commented that " | ||
+ | |||
+ | In regard to public authorities taking more responsibility and accountability, | ||
+ | |||
+ | There was discussion of sanctions and better enforcement measures for the Data Protection Directive and for DPAs. Mr. Kohnstamm agreed that more sanctions are needed, but that the measures also need to expand power and scope in order to logistically take on the added load (adding that currently there are only 80 employees in his DPA). | ||
+ | |||
+ | The public consultation on the Communication is open until 15 January 2011. The Commission plans to release the final review of the Data Protection Directive sometime " | ||
+ | |||
+ | * Videoclips from the Privacy Platform meeting: | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | |||
+ | ===== 8. Sweden' | ||
+ | The Swedish ISP TeliaSonera has recently received a decision at the Swedish Supreme Court that questions a 2009 court decision forcing it to hand over the identity of SweTorrents BitTorrent site operator. | ||
+ | |||
+ | In 2009, four movie studios represented by anti-piracy group Antipiratbyran took TeliaSonera to Södertörn District Court which forced the ISP to reveal the identity of the respective file-sharer. | ||
+ | |||
+ | The anti-piracy group as well as the court considered that, based on Sweden' | ||
+ | |||
+ | TeliaSonera appealed, but in May 2010, the Court of Appeal upheld the District Court' | ||
+ | |||
+ | "It is good that the Supreme Court shares our view that there must be a balance between the interests in matters of principle and that court has now therefore decided that TeliaSonera' | ||
+ | |||
+ | This means that a final decision in the matter might take a few years. And, as there is nothing in the Swedish Electronic Communications Law that obliges ISPs to store information about the IP addresses of their customers, Telia, as well as the other ISPs, will be free to stop storing data or delete data in order to protect the privacy of their customers. At least until the data retention directive is implemented in Sweden. | ||
+ | |||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | |||
+ | ===== 9. ENDitorial: WIPO SCCR 21 session ===== | ||
+ | The present text is a report from the Standing Committee on Copyright and Related Rights 21st meeting in Geneva, Switzerland (SCCR 21). In this report, the debate on the Broadcasting Organizations' | ||
+ | |||
+ | The discussions on the matter started during the afternoon of the second day of the meeting. A handy comparison chart of the four previously introduced proposals from 2009 and 2010 was available, from which it was fairly easy to catch up with the current discussion. Brazil, Ecuador and Paraguay (later joined by Mexico - thus the BEMP Treaty proposal) and the African Group made fairly similar proposals, based on a World Blind Union recommendation for the visually impaired (various terminologies were used in various documents, e.g. blind and other reading disabilities or persons with print and other reading disabilities - for the purpose of this document, they mean the same). In their proposals, other disabled people were also mentioned, unlike the US or EU proposals, which were in this and other respects much more restrictive in the exceptions proposed. The exceptions for other disabled were, in the final document, moved to a different meeting, together with the limitations and exceptions for educational and research institutions, | ||
+ | |||
+ | During the meeting, KEI made a statement supporting the BEMP Treaty proposal for extending the exceptions to include other disabled in need than only visually impaired, which I signed on EDRi's behalf. | ||
+ | |||
+ | Most of the discussion in the meeting, from Wednesday on, revolved around the issue of limitations and exceptions for the visually impaired. Unfortunately, | ||
+ | |||
+ | May/June 2011, SCCR 22: three additional working days for limitations and exceptions for persons with print and other reading disabilities, | ||
+ | |||
+ | November 2011, SCCR 23: three additional working days for limitations and exceptions for libraries and archives. This was an especially hot topic amongst the NGOs, as it originally seemed that educational and research institutions would have been handled before libraries and archives and all were predicting that to be a much tougher negotiation, | ||
+ | |||
+ | It seems that the limitations and exceptions for archives is going to be a lot easier topic to handle than for libraries. There is little point in limiting the usage of archive material, especially (but not only) in the case of orphan works, by the archives. It is, after all, fairly unlikely that these would be profitable usages nor that they would be " | ||
+ | |||
+ | May/June 2012, SCCR 24: again, three additional working days to the regular session, now for the limitations and exceptions for education, teaching and research institutions, | ||
+ | |||
+ | There seemed to be no representatives for education, teaching and research NGOs and institutions at the meeting. Maybe they were there, but the NGOs representing visually impaired, libraries, archives and general purpose NGOs such as EDRi, EFF and KEI (although, no FSF, even though they had a seat - unfortunate), | ||
+ | |||
+ | Both SCCR 23 and SCCR 24 results are to be presented in the following WIPO GA meeting in September 2012. | ||
+ | |||
+ | Basically, the exceptions for various disabled are not going to switch the field of copyright much to any direction - nor will the exceptions to archives. And these exceptions are easily justifiable by the mere access to information argument - access to extremely limited amount of information compared to non-disabled, | ||
+ | |||
+ | The exceptions for libraries, schools, higher education and research, on the other hand, might be more meaningful from a copyright perspective. But in a good sense, as in getting access to information for those who, at the moment, are lacking it, especially for education but also for cultural purposes (as is of course true for disabled as well!). | ||
+ | |||
+ | As it seems to be becoming more and more common, the meeting stretched until (and past) midnight on the last evening. The final version of the timetable for further negotiations was accepted 7 minutes to midnight - after midnight it would have been too late, and it would have gone to SCCR 22. After that, the paper was still discussed, thanks were given etc., but basically, the result of SCCR 21 was achieved at that point. | ||
+ | |||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | |||
+ | ===== 10. Recommended Action ===== | ||
+ | * [[https:// | ||
+ | |||
+ | ===== 11. Recommended Reading ===== | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | |||
+ | ===== 12. Agenda ===== | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// | ||
+ | * [[http:// |
archief/edri_gram_nieuwsbrief/15_12_10.txt · Laatst gewijzigd: 2017/09/11 21:36 door KapiteinG