ISP self-regulation proposal entertainment industry

The MPA (Motion Picture Association) and the IFPI (International
Federation of the Phonographic Industry) are pushing for a new
collaboration with internet service providers in Europe. The MPA has
drafted a ‘possible ISP-Film Sector Voluntary Code of Conduct’, while the
IFPI called for a similar code in relation to the music sector during a
conference of European telecom network operators (ETNO).

The industry demands that providers “remove references and links to sites
or services that do not respect the copyrights of rights holders”.
Providers should also collectively adopt new terms and conditions, to
‘require subscribers to consent in advance to the disclosure of their
identity in response to a reasonable complaint of intellectual property
infringement by an established right holder defence organisation or by
right holder(s) whose intellectual property is being infringed,’ thus
overruling the essential privacy-protection of internet subscribers and
without mentioning any right of reply.

The copyright industry doesn’t stop there. It also wants providers to
develop ‘prototype instant messaging language directed at infringers’ and
a termination of contract for ‘recidivists’. Just in case the EU doesn’t
introduce mandatory data retention, in spite of the repeated lobby of MPAA
and IFPI, the providers should voluntarily preserve data/evidence
necessary to enforce copyright. And if that isn’t enough, ISPs should
implement filtering technology to block services and sites that are
‘substantially dedicated to illegal file sharing or download services.’

But the most ludicrous demand is the following: “To enforce terms of
service that prohibit a subscriber from operating a server, or from
consuming excessive amounts of bandwidth where such consumption is a good
indicator of infringing activities.”

The promoters of the document seem inspired by a French code of conduct
signed on 28 July 2004 by 3 French ministers, representatives of the music
industry and major ISPs and telecom operators. This code builds on the
French e-commerce legislation (providing for notice and take down
measures, see a.o. EDRI-gram 2.12) and the revised French privacy and
personal data protection legislation. Under the new data protection act,
collecting societies and similar representatives of intellectual property
rights have the right to create files with telecommunication traffic data
of supposed copyright infringers to ‘mutualise the battle against the
piracy of works’ (see EDRI-gram 2.15). The code has already been used to
terminate the contracts of subscribers. It also encourages right-holders
societies to sue P2P users. According to a recent article by the French
weekly magazine ‘Le Point’, these cases have led to ‘a la carte’
penalties, corresponding to the commercial sales price of a song.

ETNO has already responded indirectly to these new demands, in a response
to the consultation from the Article 29 Working Party of EU data
protection authorities. “ETNO Members are also concerned by the constant
pressure to overturn the provisions of the E-Commerce Directive
(2000/31/EC) on ISP liability in order to create a situation where
intermediaries are liable for illegal content transmitted across their
networks. The Directive states very clearly that no systematic obligation
of surveillance or monitoring should be imposed on ISPs. Furthermore,
Article 15 of this Directive establishes that ISPs should be subject to no
general obligation to actively seek facts or circumstances indicating
illegal activities.” And: “In particular, ETNO fully agrees with the
Working Document’s conclusion that personal data can only be transferred
in very defined cases provided by Law, only to Public Law Enforcement
Authorities, and not to right-holders directly.”

The debate will continue during an open WIPO seminar on ISP liability in
Geneva, on 18 April 2005.

Announcement WIPO seminar on ISP liability (Geneva, 18.04.2005)
http://www.wipo.int/meetings/2005/wipo_iis/en/

Music biz calls on European ISPs to act against P2P sharing (08.03.2005)
http://www.pcpro.co.uk/news/70163/music-biz-calls-on-european-isps-to-act-against-p2p-sharing.html

French code of conduct: ‘Charte d’engagements pour le développement de
l’offre légale de musique en ligne, le respect de la propriété
intellectuelle et la lutte contre la piraterie numérique’ (28.07.2004)
www.culture.gouv.fr/culture/actualites/conferen/donnedieu/charte280704.htm

Le Point: Piratage – Des sanctions à la carte (31.03.2005)
http://www.lepoint.fr/pointcom/document.html?did=160790

ETNO response to WP 29 consultation on DRM (March 2005)
http://www.etno.be/upload/down_files/9241/RD213%20-%20CL%20DP%20issues%20related%20to%20IPR.doc

EDRI-gram 2.12: Notice and take down procedure validated in French law
(16.06.2004)
http://www.edri.org/edrigram/number2.12/len

EDRI-gram 2.15: New French data protection act not unconstitutional (04.08.2004)
http://www.edri.org/edrigram/number2.15/frenchdpa

(Thanks to Meryem Marzouki, EDRI-member IRIS)