Dear Sir or Madam

I am writing on behalf of Digital Rights Ireland Ltd. in support of the submission made by European Digital Rights. While we are in full agreement with that submission, we would like to take this opportunity to emphasis some particular aspects which are missing from the Report on the Enforcement Directive.

The absence of an “an evaluation of its [the Directive's] impact on innovation and the development of the information society”, as required by Article 18, is a fundamental flaw in the Report. The presumption that enforcement of exclusive rights is a key driver of innovation lies behind the Directive’s design. In its report on the Database Directive, the Commission has already been confronted by empirical evidence that this is not a universally valid presumption. While late implementation in several Member States is stated to have impeded the collection of the data necessary for such an evaluation, one is left wondering why such tardiness was no obstacle to the Report’s commentary on the efficacy of the Directive’s substantive measures. The contribution of exclusive rights regimes to advances in any sphere should be assessed through empirical analysis, on a sector by sector basis, in light of evidence.

Failure to grapple with the innovation question is of especial concern due to changed perspectives in this field over the last decade. Initially, the Lisbon Agenda benchmarking process relied on statistics regarding R&D spending and patent activity as predominant indicators. But today a more nuanced and situated understanding of the heterogeneity of innovation (in services, in different local contexts etc.) has superseded this vision. This point was raised by the Center for European Reform in its most recent report (The Lisbon Scorecard X, the Road to 2020). In high technology areas, also, the efficacy of alternative approaches to capturing the benefits of investment (free software, user-innovation) is no longer a matter of dispute. Any useful account of the interface between enforcement measures and innovation must take these new perspectives into account.

Lastly, and with particular relevance to copyright, the report is silent on the matter of overstatement of claims: instances where works are being removed from circulation preemptively due to complaints by rightsholders, even where the basis for the complaint is unfounded. Experiments conducted by researchers from Oxford’s Socio-Legal Institute and user group Bits of Freedom have shown that even spurious complaints often result in the take down of materials which are clearly not-copyrighted. Risk aversion on the part of webhosts & ISPs, combined with a desire to minimise compliance costs, creates a situation where both legitimate and contested uses of media online are abrogated preemptively. This occurs increasingly through the types of automated filtering and monitoring systems which rightsholders would have intermediaries install as standard. Future review of enforcement mechanisms should also investigate misuse of rights and the consequences both on freedom of expression and new uses of cultural works.

Yours faithfully

Senator Paschal Donohoe: I thank the Minister for taking this Adjournment matter. It relates to Government thinking on dealing with the issue of illegal file sharing across the Internet. There was some publicity about that in recent weeks in regard to a freedom of information request to the Government through an organisation called Digital Rights Ireland. It was looking to establish Government policy on how it would work with Internet service providers in Ireland to stop files being shared illegally across the Internet.

In raising this issue on the Adjournment I seek to do three things, the first of which is to establish Government policy and thinking on the area because until now I have been unable to get a read on the most recent thinking in terms of the way this area will be dealt with. How we respond to this is becoming increasingly important because there have been a number of High Court rulings in this area to which the Government will have to respond and deliver a policy that will deal with this area.

Second, I have an interest in Irish companies that work on the Internet. These are legitimate large Irish companies that would work in digital media, digital gaming, digital art, animation and so on which depend on the Internet to deliver a legitimate business that is a symbol of the smart economy we are all committed to delivering. Some of those companies have flagged a number of issues in terms of where they see Government policy going that could seriously affect their ability to operate successfully out of Ireland.

Two points have been made to me, the first of which is the need to recognise and emphasise that not all file sharing across the Internet is illegal. Much of the file sharing is important for digital games, on-line enterprises and marketing activity to work. It is completely legal and the kind of enterprise and activity our country is trying to promote as being a hub for Europe and the world.

The second point is a more technical one that I am trying to understand further but it is worth putting on the record. It appears that many of the protocols and technologies that would be involved in illegal file sharing are also the ones used to run legal file sharing and the approach the Government might decide to take may be unable to recognise the difference.

That leads me to the third point I want to make. As this issue was raised with me and I talked to some experts in the area, the message I got back from large employers here, who are strategic to what we are looking to do with our smart economy is that a policy that did not consult them could threaten the jobs and expertise we are building up in areas like cloud computing, digital media and attracting companies like Facebook, which has its European headquarters in Dublin, Google, Bling and so on which depend on many of these technologies for their business and operations in Ireland.

This issue is now being dealt with across Europe and the world and it is being treated much more seriously than was the case in the past. While I am presenting this as a threat to our country because inevitably we respond to bad news we hear and raise them in these Houses, the important flip side is that as other countries make a decision about the way they will respond to this issue, there is the possibility they will use a blunt instrument to deal with it.

I urge the Minister, the Department of Justice, Equality and Law Reform and the Department of Communications, Energy and the Marine to consult broadly with the businesses and stakeholders in Ireland to ensure we come up with a policy that deals comprehensively and seriously with the issue of illegal file sharing, which includes everything from the sharing of songs illegally to child pornography, which is a very serious issue, but in a way that recognises that a great deal of commercial activity we are trying to attract uses the same technology. We have already had much success in that regard.

If we were to do engage in a consultation process, we could formulate a policy that might be more nuanced and effective than those of many other competitive countries which are looking to get the same technologies. That would add to our ability to grow these industries domestically through indigenous talent and would also be another string in our bow in terms of attracting such companies to our country, which we all want. Our country has had a great deal of success in this area up to now.

I realise the Minister of State will reply on behalf of another Department. I understand the reason for that but this is a serious issue and if we all engage in it, it might ward off danger and present an opportunity to us as well. I look forward to the Minister of State’s response and hope to have an opportunity to pursue this issue in the Seanad.

Minister of State at the Departments of Health and Children, Education and Skills, Enterprise, Trade and Innovation and Justice and Law Reform (Deputy John Moloney): I thank Senator Paschal Donohoe for raising this important matter on the Adjournment. I want to advise Senator Donohoe that the Office for Internet Safety, OIS, is an executive office within the Department of Justice, Equality and Law Reform, which the Senator has acknowledged, and has responsibility for promoting Internet safety, with a particular focus on combating child abuse imagery, more commonly known as child pornography. The office is advised by an Internet Safety Advisory Council comprised of key stakeholders in the statutory, industry and community sectors.

The Internet is a worldwide phenomenon with no borders and no single organisation controlling it. Efforts to combat illegal and harmful materials and activities on it can be hampered by the multiplicity of jurisdictions, differing legal systems and societal norms. Tackling Internet downside issues is a complex business and continues to set new challenges and commitments for all those charged with protecting against the downside of the Internet.

In a number of EU member states — the United Kingdom, Denmark, Finland, Norway, Sweden and the Netherlands — a system of Internet blocking-filtering has been introduced on a voluntary basis whereby a so-called blocklist of sites containing illegal child pornography is made available by the police or other competent authorities and is utilised by individual Internet service providers to prevent access to such content. Germany and France have introduced or are considering the introduction of legislation requiring ISPs to block access to websites containing child pornography.

It is generally acknowledged that all such Internet blocking or filtering systems are not foolproof and can be circumvented in certain circumstances. However, such filtering systems are understood to be useful in preventing Internet users from inadvertently encountering such illegal content. All mobile phone operators in Ireland, under a voluntary agreement brokered by the European Commission with GSM Alliance Europe, an association which represents European mobile phone operators, implement a form of filtering on their mobile Internet services which prevents access to websites identified as containing illegal child pornography. There is an existing self-regulatory framework for Internet service providers in operation in Ireland that actively encourages the adoption of best practice procedures aimed at limiting the proliferation of illegal child pornography content on-line. Members of the public may report such material to the Internet Service Providers Association of Ireland www.hotline.ie service. If the material is hosted here and deemed to be illegal and in contravention of Irish law, ISPAI members are obliged to remove such material. If the material is hosted in another jurisdiction, it is notified to the Internet hotline in that jurisdiction and the relevant law enforcement agencies for follow-up, with the aim of having illegal content taken down.

So far as the Department of Justice, Equality and Law Reform is aware, standard Internet service providers in Ireland do not implement any blocking or filtering system in respect of child pornography. The Office of Internet Safety, because of its stated role in the promotion of Internet safety and, in particular, combating child pornography, has a role in examining such issues with advice from the Internet Safety Advisory Council. In undertaking research to develop policy advice in this area the Office of Internet Safety has had discussions with a variety of relevant interests on issues pertinent to the consideration of the possibility or feasibility of introducing Internet filtering in Ireland, specifically in respect of illegal child pornography content. These ongoing discussions were referred to in recent press reports. However, no decisions have been arrived at on the issue of Internet filtering or blocking at national level. Any proposals for the introduction of such a system would, at the very least, need to be submitted to the Government for consideration. The introduction of any such system, particularly if it is mandatory, might require primary legislation. Notwithstanding this, a draft proposal for a directive on combating the sexual abuse and sexual exploitation of children and child pornography has been published recently by the European Commission which could potentially require member states to implement some form of blocking system for websites containing child pornography. This proposal will be discussed in the European Parliament and at the Council of Ministers. Ireland’s participation in the adoption and implementation of this measure will be subject to Government and Oireachtas approval.

Senator Paschal Donohoe: Everyone is supportive of any measure that can be taken to deal with the evil of child pornography and its distribution on the Internet. The consequences of a course of action that could be taken may be more far-reaching and profound than is understood. The response of the Minister of State concerns the discussions taking place — referred to in the first part of my submission — but does not take account of the second part — the effect such a measure could have on interests in Ireland. There are options to deal with the dissemination of child pornography and violent material on the Internet that would have a more benign effect on elements we are legitimately trying to attract to the country. That the Department of Communications, Energy and Natural Resources is not mentioned in the response is telling. That Department is at the forefront in attracting legitimate businesses to the country.

I again thank the Cathaoirleach for giving me the opportunity to raise this matter.

Pulling the plug is not the answer

Earlier this week Eircom announced that it has started “the phased disconnection of file-sharers” on its network – colloquially known as a “three strikes” policy.

The key players in this procedure are Eircom, the Irish Recorded Music Association (IRMA) and technology firm Dtecnet. Under the procedure IRMA will provide Eircom with the IP addresses of machines that Dtecnet claims to have found to be infringing the copyright of its members. This will then trigger a disconnection procedure by Eircom starting with a letter, moving on to temporary suspension of an account, and ending with the disconnection of the account for up to a year.

In Ireland, one must generally have engaged in some form of wrongdoing in order to be punished. It is clear that the disconnection of one’s internet access is quite a severe punishment in today’s digital society.

But one problem with the approach adopted by Eircom is that the wrongdoer and the person who is disconnected may not be the same person.

The evidence used to identify alleged filesharers is unreliable.

Recent studies in the US have shown that copyright holders often act on flimsy evidence – in one case, accusing three laser printers of illegal filesharing. Similarly there is substantial evidence of UK users being wrongfully targeted. This may in part be due to deliberate tactics to sow confusion.

For example, the operators of filesharing site ThePirateBay have confirmed that they insert random IP addresses into the information they provide as to who is sharing what file.

But whatever the reason it is likely that innocent Irish users will face wrongful accusations.

In addition, in the era of wireless technology it is very common for an internet connection to be shared by many members of a household. In fact, Eircom offers wireless routers as part of its broadband bundles. This means that cutting off internet access based on the actions of one user will have a detrimental effect on all the others using the same connection for education, entertainment or business purposes.

If a husband is accused of filesharing, should this have the effect of preventing his children from doing their homework, or his wife from working at home?

It is clear that in the household context, the alleged wrongdoer and the individuals punished are not the same and the impact can be wholly disproportionate.

There’s also a risk that users may be accused based on somebody else piggybacking on their wireless connection. In November 2009 it was revealed that Eircom had negligently supplied insecure wireless modems, affecting up to 250,000 users.

Consequently anyone within the signal range of these users can illegally share files without the account holder’s knowledge – and there is even an app for the iPhone to make this process easier.

Eircom state on their website that they will not disconnect business customers but the effects of these measures on a small business could be catastrophic where they have an ordinary household account (as many do).

Through no fault of their own, a small business might find their internet connectivity withdrawn because of the actions of another family member, a malicious neighbour or even because they happen to be unlucky enough to be assigned the same IP address as one ThePirateBay has randomly inserted into files sharing the latest U2 album. This is worrying in a situation where a person’s livelihood is at stake.

One criticism of the current approach is that it shifts the burden of preventing illegal file sharing onto the ISPs, driving up the cost of broadband for private users and businesses. While this is true, it in fact goes much further than that. This logic of this deal – particularly if it is extended to other ISPs – potentially places a burden onto small businesses such as hotels and coffee shops to police their users’ activity. This will come at a significant cost to these businesses who have limited resources in these hard times.

Quite apart from these criticisms, there are also significant problems of principle. Internet access is today a fundamental right and a necessity – especially as the government moves more public services online – but this system threatens to take away that right based on nothing more than a private agreement between IRMA and Eircom.

In other European countries proposals for similar laws have been the subject of public consultation and debated by national parliaments. Here, however, there has been no legislation and no Government or Oireachtas input of any sort. Indeed the full details of the deal between Eircom and IRMA have never been published. A recently passed European law requires that disconnection of internet users should be subject to “adequate procedural safeguards” and “effective judicial review” – this deal, however, doesn’t appear to provide for either.

Instead, it allows users to be disconnected with no right of appeal to any independent body.

In summary, the Eircom / IRMA deal and the “graduated response” procedure is a worrying development for Irish internet users – one which has been undemocratic in its adoption and is likely to be unreliable in its application.

TJ McIntyre is a Lecturer in the School of Law, UCD and chairman of Digital Rights Ireland

Dr. Richard Tynan is a Postdoctoral Research Fellow in the School of Computer Science and Informatics, UCD

I’m quoted in today’s Irish Times on the threats made by JC Decaux against Fusio resulting in their taking down their Dublin Bikes App.

Leave aside for a moment the PR stupidity of this strategy.

Ignore if you will the dubious legal basis of their claim. (Without going into the finer points of copyright in facts, database rights, clickwrap agreements or possible passing off, the vague nature of their complaint – “Following our conversion, I confirm that you do not have the rights to use the information published on the web site http://www.dublinbikes.ie/. In particular the data concerning the stations is the property of JCDecaux and cannot be used without our prior authorisation” – makes it clear that they have little idea what they are talking about.)

Think instead about the issue of principle. A body which is operating in partnership with Dublin City Council is attempting to stop an Irish company from providing – free of charge – facts to the public about the service which they offer, without giving any justification for doing so, and without offering an alternative of their own. (I’m happy to see that at least some of our politicians understand the absurdity of this.)

I spoke to the press office in Dublin City Council today, who made it clear that they regard this matter as nothing to do with them. But why not? DCC were happy to work with Fusio to develop the app. Is there no provision in their contract with JCD establishing an obligation to provide information to the public about the service? Will they make sure that future contracts address this type of situation? (And – while I’m on the topic of the contract – why does JCD own the domain dublinbikes.ie? Is there any provision in the contract for the domain to revert to DCC on its expiry?)

- TJ

[Update - since initially posting this I have asked DCC for a copy of any correspondence with JCD over this issue and with any relevant portions of their contract with JCD. This seems to be an issue where JCD would be likely to reverse their stance if pressure were applied (one would hope they understand the risks of bad publicity!) - and where an important point of principle about reuse of data could be established. You may wish to email JCD at info@jcdecaux.ie; you can find contact details for your local councilors here.]

Leave aside for a moment the nonsense of sending this letter to a business – Blacknight - which doesn’t in fact provide internet access. The key words are these:

Eircom has agreed that it will not oppose any application our client may make seeking the blocking of access from their network to the Pirate Bay or similar websites …

Please confirm that Blacknight will also work with the record industry to end the abuse of the internet by peer to peer infringers … in the event of a positive response to this letter it is proposed to make practical arrangements with Blacknight of a like nature to those made with eircom.

In short, as Adrian Weckler puts it:

Irma is drawing up a list of websites it doesn’t like and Eircom will block them to all of its customers. And Irma is demanding that other ISPs do likewise, on pain of being sued.

Eircom says that it will only block a website if a court order requests it to. But it has undertaken not to oppose any application to a court… Our judicial system is an adversarial one: it depends on someone opposing the action for a judge to come to a conclusion. If the opposing party enters no opposition, a basic standard of proof will be enough to satisfy the court.

The net effect of this scheme, if it is allowed to go into effect, will be to impose an internet death penalty on two groups. On users, who will be cut off on the allegation of a private body, with no court involvement, and on websites, which could be blocked to Irish users based on a court hearing where only one side is heard. Damien Mulley makes the point well as usual:

So first they’ll start with the Pirate Bay. Then comes Mininova, IsoHunt, then comes YouTube (they have dodgy stuff, right?), how long before we have Boards.ie because someone quoted a newspaper article or a section of a book? And don’t think they’ll stop there too, any site that links to The Pirate Bay and the others on the hate list will probably be added to the list too…

I’m sure the business case for eircom was they didn’t want any more costly High Court actions with McDowell biting at their legs on the command of the music industry but this is going to open up a can of worms with IRMA demanding more and more attacks on how people surf the net, this is what it is in my view an attack on our freedom to read, our freedom to write, our freedom to move around the web. All so a very rich but rapidly becoming poor group of luddites can feel better for seeing the future and trying to fight it.

And of course the costs of communications with IRMA and of the filtering is going to be passed on to the consumer. The cost of blocking a single site will be almost nothing I suppose but as more sites get added and as the arms race between the pirates and the ISPs escalates, then it’ll become complicated and complicated costs more. So again the majority get to pay…

So what can you do about this? The first step is the most urgent. The other ISPs are at this very moment considering what steps to take. Although some (such as Bitbuzz) have been vocal in their opposition, caving in is the path of least resistance unless you show that this is an issue which matters to you and which determines where you’ll take your business. Contact your ISP – mark your email for the attention of their regulatory department – and let them know what you think. Contact emails for most ISPs are on the ISPAI website. Do it now – the decision on what to do will be made soon.

The next thing to do is to get involved with a group which will fight this. We’re currently working on a few ideas and will let you know soon. But in the meantime you should go to Blackout Ireland who have been quick off the mark with a plan to black out the Irish internet for a week from March 5th. The Digital Rights forum on Boards.ie has also been abuzz with this issue, as has this thread on their Broadband forum.

Having done that, let the Minister for Communications – Eamon Ryan – know the damage that this is likely to cause. Don’t just rely on the civil rights arguments – business impact is more likely to get attention. Point out that if ISPs are forced to become the (unpaid!) copyright cops of the music industry, it will drive up their costs and set a dangerous precedent for other Irish internet businesses. Would you choose to establish an internet start up in Ireland if you thought you’d be made responsible for policing what your users do? Ask him to intervene to prevent irreparable damage to the Irish internet. Eamon Ryan’s email addresses are eamon.ryan@oireachtas.ie and minister@dcenr.gov.ie but a paper letter (Department of Communications, Energy and Natural Resources, 29-31 Adelaide Road, Dublin 2) or fax ((01) 678 2029 or 2039) are more likely to get attention. You can also ring the Minister’s office on (01) 678 9807 – if you do, be polite and succinct. If you’re a constituent of his (in Dublin South) be sure to mention that fact and that this issue will influence how you vote in the next election.

An improvement for transparency? It would be, if Justice lived up to their past promises to hold an open consultation process. But they haven’t. Their website still claims that the Directive will be transposed via a statutory instrument – notwithstanding the fact that they have prepared a draft Bill which they have been circulating to industry groups. Nor are they willing to show the draft Bill to the public – consultation for Justice appears to mean a secret process controlled by them and excluding citizens.

We’ve contacted Justice for their comments. In the meantime, we think that the public should have the same right to see the draft Bill as industry insiders, so here’s a copy of what we understand is the latest draft:
COMMUNICATIONS (RETENTION OF DATA) BILL 2009

It’s undoubtedly a good thing that the idea of filtering has (at least for the time being) been dropped – and in case you’ve forgotten, here’s why it’s a bad idea. But this new three strikes system has the potential to be just as bad. Why?

It’s unreliable. The company which the Irish music industry used in previous cases to identify filesharers – MediaSentry – has a track record of false accusations and in fact was recently found to be operating illegally in several US states. As a result the music industry has now dumped MediaSentry and has turned to Danish firm Dtecnet – but the inherent unreliability of this process remains.

It’s secret. We normally expect rules to be made in public, to be accessible to citizens and to be applied publicly. In this case, though, the settlement is private to the parties and we don’t know how it will be implemented by Eircom. Do you expect the right to challenge evidence in court? Perhaps a right to appeal? Tough. On the face of it the music industry and Eircom will between them act as judge, jury and executioner.

It’s undemocratic. The European Parliament has already rejected a similar plan to disconnect individuals based on mere accusations. In other countries where three strikes has been discussed there has been public input via legislatures and public consultation. (And in the UK the democratic process led to three strikes being shelved.) Here, however, the music industry is trying to foist the system onto ISPs while sidelining the Oireachtas and the democratic process.

It’s disproportionate. Daithi makes this point well:

The present-day Internet includes communication (email), socialising (IM, social networking etc), media consumption (websites, blog, streaming, etc), media creation (ditto), access to Government services, online commerce, etc. Now imagine that the sanction for a, let’s face it, relatively minor crime (copyright infringement, while economically significant, is hardly manslaughter), includes no use of the postal services, highly limited access to shops, no permission to read a newspaper, reduced ability to use public services or get public information, and more. That’s no minor sanction. Indeed, most prisoners can get things like reading material and send and receive letters! Not to mention that a Net disconnection has an impact on family members and others.

It will affect innocent third parties. Internet connections are not generally unique to an individual. Instead they’re shared – amongst families, flatmates, etc. But this system will mean that others will suffer based on the alleged wrongdoing of another. As the Open Rights Group points out:

if Dad gets the connection cut off … suddenly Mum can’t run her business from home, and the kids can’t get access to the Web to do their homework.

Why are these proposals being pushed? Because copyright in many classic recordings from the 50s and early 60s is about to expire, making them part of the public domain.

What would the effect of the proposals be? The result would be to lock up those recordings for a further 45 years, depriving the public of the ability to reissue and rework those recordings. The outcome will be to benefit the music industry and to injure the public interest. But you don’t have to take our word for it. Here’s what the leading experts in copyright throughout Europe had to say:

Copyright extension is the enemy of innovation

Sir, Europe’s recorded music was about to experience a wave of innovation. For the first time, a major set of culturally important artefacts was to enter the public domain: the sound recordings of the 1950s and 1960s. Apparently not so. If the European Commission has its way, re-releases and reworkings of recorded sounds will remain at the mercy of right owners for another 45 years. Why?

The record industry succeeded to supply the Commission with evidence that was not opened to public scrutiny: evidence that claims that consumer prices will not rise, that performing artists will earn more, and that the record industry will invest in discovering new talents, as if exclusive rights for 50 years had not provided an opportunity to earn returns.

The Commission’s explanatory memorandum states: “There was no need for external expertise.” Yet, independent external expertise exists. Unanimously, the European centres for intellectual property research have opposed the proposal. The empirical evidence has been summarised succinctly in at least three studies: the Cambridge Study for the UK Gowers Review of 2006; a study conducted by the Amsterdam Institute for Information Law for the Commission itself (2006); and the Bournemouth University statement signed by 50 leading academics in June 2008.

The simple truth is that copyright extension benefits most those who already hold rights. It benefits incumbent holders of major back-catalogues, be they record companies, ageing rock stars or, increasingly, artists’ estates. It does nothing for innovation and creativity. The proposed Term Extension Directive undermines the credibility of the copyright system. It will further alienate a younger generation that, justifiably, fails to see a principled basis.

Many of us sympathise with the financial difficulties that aspiring performers face. However, measures to benefit performers would look rather different. They would target unreasonably exploitative contracts during the existing term, and evaluate remuneration during the performer’s lifetime, not 95 years.

We call on politicians of all parties to examine the case presented to them by right holders in the light of independent evidence.

Professor Lionel Bently, Director, Centre for Intellectual Property and Information Law, University of Cambridge; Professor Pierre-Jean Benghozi, Chair in Innovation and Regulation in Digital Services; Director, Research in Economics and Management, Ecole polytechnique, CNRS 1, Paris; Professor Michael Blakeney, Co-Director, Queen Mary Intellectual Property Research Institute, University of London; Professor Nicholas Cook, Director, AHRC Research Centre for the History and Analysis of Recorded Music, Royal Holloway, University of London; Professor Dr. Thomas Dreier, Director, Centre for Information Law, Universität Karlsruhe, Karlsruhe Institute of Technology; Professor Dr Josef Drexl, Director, Max-Planck-Institute for Intellectual Property, Munich; Dr Christophe Geiger, Associate Professor and Director elect, Centre for International Industrial Property Studies (CEIPI), University of Strasbourg; Professor Johanna Gibson, Co-Director, Queen Mary Intellectual Property Research Centre, University of London; Professor Dr Reto Hilty, Director, Max-Planck-Institute for Intellectual Property, Munich; Professor Dr Thomas Hoeren, Director, Institute for Information, Telecommunications- and Media Law, Münster University; Professor Bernt Hugenholtz, Director, Institute for Information Law, University of Amsterdam; Professor John Kay, Chair, British Academy Copyright Review; Professor Martin Kretschmer, Director, Centre for Intellectual Property Policy & Management, Bournemouth University; Professor Dr Annette Kur, Max-Planck-Institute for Intellectual Property, Munich; Professor Hector MacQueen, Co-Director, SCRIPT/AHRC Centre Intellectual Property & Technology Law, University of Edinburgh; Professor Ruth Towse, Professor of the Economics of Creative Industries, Erasmus University Rotterdam and Bournemouth University; Professor Charlotte Waelde, Co-Director, SCRIPT/AHRC Centre Intellectual Property & Technology Law, University of Edinburgh

OK, I’m convinced. What can I do to oppose this? The people to contact are the MEPs for your constituency. A full list (with contact details) is here.

So what should I say when contacting them? A petition against these changes has been organised by (amongst others) the UK Open Rights Group and EDRI . You might like to use the text of that petition (slightly modified):

Dear …

I am a constituent of yours in … and the question of copyright is important to me.

The European Parliament is being asked to nearly double the term of copyright afforded to sound recordings. Industry lobbyists suggest that extending copyright term will help increase the welfare of performers and session musicians. But the Term Extension Directive, which will be voted on by the Legal Affairs Committee in a few weeks’ time, will do no such thing. Instead it will hand millions of euros over to the world’s four major record labels, money that will come direct from the pockets of European consumers. The majority (80%) of recording artists will receive between €0.50 – €26 a year.

Helping poor recording artists is a commendable aim. But the Term Extension Directive insults these good intentions. Andrew Gowers, former editor of the Financial Times, who conducted an independent review into the intellectual property framework for the UK Government in 2006, has called it out of tune with reality. Professor Bernt Hugenholtz, who advises the European Commission on intellectual property issues, has called it a deliberate attempt on behalf of the Commission to mislead Europe’s Parliament. If passed, the Term Extension Directive will have serious consequences for Europe’s IP policy.

* Any extension of copyright term will take money directly from consumers’ pockets. It will also consign a large part of Europe’s cultural heritage to a commercial vacuum.
* Europe’s leading IP research centres have clearly shown the proposal does not do what it purports to do – help the poorest performers. It is simply a windfall for the owners of large back catalogues and the top earning performers.
* The proposal will undermine public respect for copyright law and introduce an unworkable and unproven framework for copyright, at the very time when Europe’s copyright framework needs to be at its most robust.

I therefore ask you to vote to reject this directive.

Yours sincerely…

So when should I contact my MEP? As soon as possible – attempts are being made to fast track this measure through before public opposition grows.

As usual, we can’t condone illegal filesharing (though we should point out that this is just one of many uses of the technology). But there are still unresolved issues about this litigation.

We’ve already pointed out that the procedure used to obtain user identities is unfair and the tactics which have been used by the record industry have been found to be illegal in other jurisdictions. Also, the approach taken by the music industry raises concerns about the proportionality of the damages they seek and the reliability of their evidence:

* Most home networks are wireless these days, and most of those are unsecured. How can they tie the IP addresses they receive with any particular person?
* Claims for lost income must be based on specific evidence of loss. Why have they never released their basis for calculating the claimed damages?

IRMA may also have undermined their action by saying that “many young people were involved in file sharing probably unbeknownst to their parents“. As Philip Nolan has pointed out in the Irish Times a parent is not automatically liable for the wrongdoing of their children:

Under Irish law, copyright is infringed where a person commits certain acts, or authorizes another to do so, without the permission of the copyright owner.
Therefore, the owner of a computer which was used to download illegal songs but who was totally unaware of this, and who did not authorize it, might not be liable for copyright infringement.
This may not be a problem where the relationship between the owner and infringer is one of employer and employee, for example, as liability can generally be attributed to the employer.Where the relationship is that of parent and child, however, novel issues of parental responsibility could arise.