The New Kremlinology: Decoding The Signals Of Future EU Copyright Enforcement Moves

from the rearranging-the-chairs dept

The negotiations behind closed doors of major treaties like ACTA and TPP, and the refusal of participants to release official drafts or to engage in any kind of substantive dialog, has meant that activists and observers have been obliged to seize upon even the smallest signs and hints emerging from those talks in an attempt to guess what is going on. In a way, we are witnessing the birth of a new form of Kremlinology, which Wikipedia explains as follows: During the Cold War, lack of reliable information about the country forced Western analysts to "read between the lines" and to use the tiniest tidbits, such as the removal of portraits, the rearranging of chairs, positions at the reviewing stand for parades in Red Square, the choice of capital or small initial letters in phrases such as "First Secretary", the arrangement of articles on the pages of the party newspaper "Pravda" and other indirect signs to try to understand what was happening in internal Soviet politics. Via Guillaume Champeau, we learn that PCInpact (original in French) has spotted a treasure trove of such subtle hints about what's happening within the EU on the copyright enforcement front. It's a document entitled "Report on the online distribution of audiovisual works in the European Union", drafted by the Committee on Culture and Education, and submitted to the European Commission.

It's couched in an apparently interminable sequence of deadly dull clauses beginning "having regard to..." and "whereas...", before launching into a long list of mostly reasonable ideas for making more cross-border digital content available in the EU. But hidden away amongst these are some breathtaking suggestions.

Here, for instance, is Section 39: Calls on the Commission to afford internet users legal certainty when they are using streamed services and to consider, in particular, ways to prevent the use of payment systems and the funding of such services through advertising on pay platforms offering unauthorised downloading and streaming services; That may sound familiar, since it's identical to one of the core ideas of SOPA: cutting off all funding to sites accused of permitting unauthorized downloads.

Here's Section 42: Recognises that, where legal alternatives do exist, online copyright infringement remains an issue and therefore the legal online availability of copyrighted cultural material needs to be supplemented with smarter online enforcement of copyright while fully respecting fundamental rights, notably freedom of information and of speech, protection of personal data and the right to privacy, along with the 'mere conduit' principle; This, by contrast, is straight out of ACTA, where Section 27 says: Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy. Note the same empty promise to respect various rights that is completely undermined by the other part requiring copyright enforcement that ignores them. The only real change is that "effective" has been upgraded to "smarter".

This trick of mixing contradictory demands is repeated in Section 59 of the EU report: Calls on the Commission to consider ways to encourage network operators to standardise their technical tools and reverse the current trend of removing responsibility from these operators regarding consumer protection, implementation of intellectual property rights and ensuring Internet privacy; So, on the one hand, network operators are supposed to protect consumers and maintain their privacy, while on the other, they will be forced to become responsible for enforcing intellectual monopolies -- losing that "mere conduit" status that was invoked in Section 42 above -- and turn in accused customers to the authorities.

All-in-all, this is an extraordinary document, in part because of its repeated call for contradictory actions, but mostly for the way it asks the European Commission to bring back some of the worst ideas in SOPA and ACTA. New Kremlinologists will obviously need to keep a close eye on missing portraits or the re-arrangement chairs in order to glean further information about the secretive plans that are being discussed deep within the bowels of the EU machine.

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Filed Under: acta, copyright, copyright enforcement, eu, sopa