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European Digital Rights (EDRI) launch newsletter

28 March 2012

European Digitial Rights (EDRI) have launched about freedom, rights and rules in the information society in Europe. EDRI-gram is produced by members of European Digital Rights and will appear every 2 weeks.

The first issue includes: Implementing the European Copyright Directive, Rally members European Parliament against mandatory data-retention, Update from the United Kingdom: Identity Card, Action against governmental censorship in Germany

IMPLEMENTING THE EUROPEAN COPYRIGHT DIRECTIVE

One month after the implementation deadline of the European Copyright Directive, only 2 of the 15 member-countries have implemented the law. All over Europe, scientists, legal experts, civil rights and open source groups are warning about possible negative effects on free speech, innovation and academic research. In many countries, civil rights groups joined forces with open software promotors and wrote comments and implementation suggestions. Civil rights advocates in Austria and Finland have organised fruitful seminars. Public awareness was
raised through petitions in Denmark and Germany, while in France money is collected to afford professional legal backing throughout the implementation process.

The European Copyright Directive (EUCD), adopted in 2001, strives to harmonise the copyright regime in Europe and adapt the protection of creative works to the digital age. Article 6 of the directive is the most important, and most debated article. It forbids the circumvention of copy protection systems.

The Copyright Directive was published the 22nd of May 2001, after years of difficult negotiations in Brussels. The road to a new copyright directive started with the signing of two new treaties by the World Intellectual Property
Organisation (WIPO) in December 1996. National implementation is hardly any easier. So far, only Denmark and Greece have implemented the directive (2001/29/EC), in their existing legislation. Draft legislation was presented to
parliament in Austria, Belgium, Finland, the Netherlands and the UK. In the remaining 8 member-countries, proposals have not yet been made public. In Portugal, parliament is excluded from this legislation process.

Article 6 of the EUCD puts a ban on acts of circumvention, as well as a ban on the distribution of tools and technologies used for circumvention. The main reason for the Europe broad resistance against the directive is the fact that there is no reference to existing limitations of copyright, such as the right to make a private copy. Nor is the protection explicitly limited to copyright. Thus the entertainment industry is enabled to dictate usage far beyond the scope of any copyright regulation. In practice, this already resulted in copyright protected CD's that cannot be played on car stereo's or computers and in region-coded DVD's that don't work on European players. Finally, even though the introduction to the directive specifically mentions that the protection should not hinder research into cryptography, it is not mentioned in the law itself.

Civil rights groups point at the situation in the USA, where some researchers refrain from publishing cryptographic research since the introduction of the Digital Millennium Copyright Act (DMCA) in 1998.

Copyright law is replaced with technology, the campaign group Eurorights.org writes, and the problem with technology is that it is not the right tool for protecting copyright. A piece of software is completely unable to determine fair use, whether the person that wants to quote a part of a work is infringing copyright or if it is within the bounds of 'fair use'. Furthermore, the EUCD stifles competition in the software market. The only legal way to create a tool for playing or accessing material in a specific protected format is by signing a licence agreement with the creators of the format. This means that the company that creates a digital format has complete control over how the players should behave, and also control over who should be allowed to create players for that format.

The Electronic Frontier Foundation (EFF) just published an evaluation of the effects of the anti-circumvention provisions in the DMCA. According to the EFF, section 1201 of the Act

-chills free expression and scientific research;
-jeopardizes fair use and
-impedes competition and innovation.

An evaluation report about the Copyright Directive will be produced by the European Commission on 22 december 2004.

MEMBERS EUROPEAN PARLIAMENT AGAINST MANDATORY DATA RETENTION

38 Members of the European Parliament from 7 different political groups have united in their resistance against mandatory data retention. Initiated by Marco Cappato, Italian Radical and former Rapporteur on privacy in the electronic communications, last week the MEP's presented a strongly worded recommendation to the European Council. Even though the new European Privacy Directive leaves room for national legislation on data retention, the MEP's reject the current Council-plans for a binding framework Decision.

A questionnaire that was sent out to all member-countries about current practice and wishes concerning mandatory data retention showed all in favour of a harmonised regime, with the sole exception of Germany and Austria, and some hesitance in the Netherlands, that rather wait for Council harmonisation under pending EU computer crime legislation. Further developments are secretly discussed in the Council on Justice and Home Affairs. Only the provisional conclusions from the Danish Presidency have been made public, suggesting further discussion with the telecommunications industry is necessary.

With the urgent call, Cappato hopes to reaffirm the principle 'that general retention of traffic and location data concerning all communications and electronic transactions by all citizens for the sole purpose of providing law
enforcement authorities with material for investigations would seriously risk to undermine the very democracy it claims to defend from its enemy.'

Among the signatories are 4 former shadow rapporteurs on privacy in the electronic communications, Christian Von Bštticher (EPP), Elena Ornella Paciotti (PSE), Sarah Ludford (ELDR), Alima Boumediene-Thiery (Greens) and the Coordinator of the GUE in the LIBE Committee, Giuseppe Di Lello.

UPDATE: UNITED KINGDOM (contribution by Matthew Postgate, FIPR)

On January 31st consultation in the United Kingdom ends on plans for a national 'Entitlement' card, widely perceived to be an identity card. A six month consultation on the initiative was launched by the Government in July last year. Civil rights groups have demanded to abandon the scheme in the wake of criticisms including invasion of privacy, the risk of abuse of a centralised repository of identity information, cost and an extremely low key consultation process.

Co-ordinated action amongst several UK based groups including Stand.org.uk, Privacy International, and the Foundation for Information Policy Research (FIPR) has led to a surge of responses opposing the scheme. A website allowing the public to contact their elected representative directly has collected more than twice as many responses than the government has received through traditional channels. In a first for the UK, a voicemail system has also been used that converts voice messages and sends them to the Home Office via email. The UK
Government has confirmed it will regard these as legitimate responses to the consultation.

ACTION AGAINST GOVERNMENTAL CENSORSHIP IN GERMANY

EDRI-member FITUG (Forderverein Informationstechnik und Gesellschaft) launched an urgent public campaign against government censorship of websites. A year ago, the district government of Dusseldorf county in Germany passed orders to more than 80 internet providers to block access from their users to some foreign websites.

Providers and civil rights groups united in protest against the directive, but lost 3 out of 4 court cases, confirming immediate enforceability of the orders. Government initiatives to censor websites date back to the mid nineties, but
seemed to have been dropped from 2000 onwards as a very ineffective approach.

The renewed German efforts at censorship are in sharp contrast with the unanimous declaration of the European parliament against the use of "blocking" as a way of regulating content on the Internet. In a vote held on 11 April 2002, 460 MEP's were in favour, 0 against and 3 abstentions. In their adoption of the report on the protection of minors and human dignity, parliament expresses concern 'that recent decisions or strategies to block access to certain websites may result in the fragmentation of Internet access or the denial of access to legitimate content and therefore is not an effective European solution for combating illegal and harmful Internet content'.

FITUG writes: 'Information legally and widely available in the country of origin is decreed to be made invisible throughout Germany. This reminds us of a very bad experience in Germany's not so glorious past when Germans were not allowed to listen to foreign radio stations like BBC London.'

To get copies of the EDRI newsletter please send and e-mail to: EDRi-news@edri.org or go to:
http://www.edri.org/cgi-bin/mailman/listinfo/edri-news