EDRI-gram - Number 8, 7 May 2003
EDRI-gram newsletter
edrigram at edri.org
Wed May 7 21:44:46 CEST 2003
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EDRI-gram
bi-weekly newsletter about digital civil rights in Europe
Number 8, 7 May 2003
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Contents
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1. New EU legislation on copyright infringements
2. EDRI launches campaign on air passenger data
3. Evaluation of Directive on Electronic Pay Services
4. Danish company convicted for spamming
5. European Court of Justice rules on copyright fees
6. Shareholders give Big Brother Award to Bayer AG
7. Update on Cybercrime Treaty
8. Recommended reading
9. Agenda
10. About
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1. NEW EU LEGISLATION ON COPYRIGHT INFRINGEMENTS
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The European Commission has launched a proposal for a new Directive that
aims at no less than harmonising penalties for infringements against
copyright laws. The proposal, adopted by the Commission at the end of
January, is currently under discussion in the Legal Affairs Committee of
the European Parliament. A first draft of a 'Working Document' was
presented to that Committee by its rapporteur on 28 April.
The proposition, which was drafted under the auspices of Internal Market
Commissioner Frits Bolkestein, is largely modelled after existing
provisions in England and Wales (the Anton Pillar and the Mareva
injunction) and in France (saisie-contrefaçon).
The document contains references to the TRIPS agreement, the Bern
Convention and in particular to the EU Copyright Directive 2001/29/EC. It
calls on Member States to 'ensure that any infringement of an intellectual
property right is punishable by penalties. These penalties must be
effective, proportionate and deterrent.' The proposal explicitly covers
technical copy protection, and it gives semi-authoritative powers to
'rights management or professional defence bodies', who shall be 'entitled
to seek application of the measures and procedures referred to in this
Chapter'. In order to safeguard evidence, the proposal foresees 'the
physical seizure of the infringing goods, if necessary without the other
party having been heard'.
Damages are set as 'double the royalties or fees which would have been due
if the infringer had requested authorisation to use the intellectual
property right in question'. On top of that fine, the infringing good may
be destroyed.
With regards to criminal law, Member states are called upon to 'ensure that
all serious infringements of an intellectual property right, as well as
attempts at, participation in and instigation of such infringements, are
treated as a criminal offence.' Where natural persons are concerned, Member
States shall provide for criminal sanctions, including imprisonment.'
The draftswoman for the EP Committee is Janelly Fourtou, a French
Conservative (UDF) with ties to the publishing industry, who has a history
of dealing with sanctions against infringements. She made her parliamentary
debut four years ago with a report on the EU Green Paper on Combating
Piracy and Counterfeiting in the EU that broadly reflected the interests of
the entertainment industry.
In her Working Document, she criticizes that the Commission Proposal
'focuses on infringements committed for commercial purposes or causing
significant harm to right holders', a view which, according to her, 'has
been severely criticised by some industries'. She gives extensive room to
the repetition of the copyright industry's arguments, namely that the
Commission Proposal was too soft on 'certain forms of piracy'. She plans,
however, to co-operate closely with the commission and other Groups in the
EP in order to pass the proposition in First Reading.
Besides Legal Affairs the only Committee involved is Industry; the vote in
Legal Affairs is foreseen for September 11 (indeed), the one in Plenary for
the week following 20 October.
(Contribution by Andreas Dietl, consultant on EU privacy issues)
Proposal for a Directive of the European Parliament and of the Council on
measures and procedures to ensure the enforcement of intellectual property
rights
http://europa.eu.int/eur-lex/en/com/pdf/2003/com2003_0046en01.pdf
Working Document presented by Fourtou to the European Parliament's Legal
Affairs Committee
http://www.europarl.eu.int/meetdocs/committees/juri/20030428/495099EN.pdf
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2. EDRI LAUNCHES CAMPAIGN ON AIR PASSENGER DATA
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This week, European Digital Rights (EDRI) launched a campaign against the
transfer of European air travellers' data to the United States. The
campaign coincides with renewed talks between the European Commission and
the United States.
Since 5 March 2003, an agreement between the European Commission and United
States Customs provides US authorities online access to European
travellers' Passenger Name Record (PNR) data for flights to the US. The PNR
data consist of all relevant information related to a passenger's flight:
departure and return flights, connecting flights, special services required
on board the flight (meals such as Kosher or Halal) and flight payment
information such as credit card numbers.
Under EU privacy regulations the transfer of such personal data to third
countries is bound to strict guidelines. However, due to political and
economic pressures by the US government, the European Commission has
allowed the transfer of passenger data to go through.
On 6 May the parliamentary Committee on Citizens' Freedoms and Rights
(LIBE) held a hearing on transfer of European air travellers' data.
Representatives of the US Department of Homeland Security came to Brussels
to convince the Committee members of their intention to protect the privacy
of European air travellers. They had little to offer and presented no new
limitations on the existing practice of data transfer.
It became clear during the hearing in the European parliament that the PNR
data will be fed into the Computer Assisted Passenger Pre-screening System.
In a current test of the second generation of the system, CAPPS II, the
goal is to identify terrorists, according to Douglas Browning, a senior
official if US Customs. But the agreement between the US and the EU on the
PNR data mentions that US Customs may share the data with other US agencies
for "legitimate law enforcement purposes". This is a very broad definition
and can be read like an assurance that all European passengers' data could
be stored in FBI and other US agencies' databases for many years to come,
to be used for all kinds of law enforcement purposes. Those purposes are
very different from the limited anti-terrorism objectives that, the US
government claimed, originally justified their request for more EU
passenger data from European airline companies.
In the campaign against the transfer of PNR data European Digital Rights
offers models of complaints that air travellers can send to the airline
carriers and their national data protection commissioners. With the first
letter, air travellers can request their personal data from the airlines
and get information about which of their personal data were transferred to
the US. The second letter is addressed to national data protection
commissioners to urge them to investigate the transfer of personal data.
The letters are available through the website of European Digital Rights.
Although the US Department of Homeland Security now has a Privacy Officer
and the CAPPS II program will get a Passenger Advocate (to process
complaints from passengers) it remains to be seen what influence and powers
they will have or if these officials are merely installed to keep EU
privacy officials and advocacy groups at a distance.
Campaign against the illegal transfer of European travellers' data to the USA
http://www.edri.org/cgi-bin/index?funktion=campaigns
EPIC resource: EU-US Airline Passenger Data Disclosure
http://www.epic.org/privacy/intl/passenger_data.html
Complaints of US air passengers about the "no-fly" list (an outlook for
European travellers!)
http://www.epic.org/privacy/airtravel/foia/watchlist_foia_analysis.html
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3. EVALUATION OF DIRECTIVE ON ELECTRONIC PAY-SERVICES
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In their formal evaluation of the European Directive on Electronic
Pay-Services (98/84/EC), the European Commission strongly promotes legal
measures against copyright infringements. The report, published 2 weeks
ago, evaluates the implementation and enforcement of the directive by
member states and candidate countries, from its adaptation in November 1998
through to December 2002. Part of the report is dedicated to the problems
with satellite TV. According to the authors, a significant amount of piracy
is caused by the fact that many EU-citizens are unable to access protected
satellite TV channels originating from other member states, even if they
are willing to pay for it. The industry is called upon to actively seek
contractual solutions.
If that could be seen as criticism of the entertainment market, the rest of
the report is devoted to the need for 'a coherent pan-European legal
framework against the piracy of electronic pay services', in which any form
of piracy is to be considered a cybercrime. "(There is a) need for a
balanced and coherent enforcement framework applicable to all kinds of
piracy and counterfeiting and agreed at Community level and the
distribution of keys and illicit devices via the Internet."
On the legal protection of electronic pay services - COM (2003)198 (24.04.2003)
http://europa.eu.int/comm/internal_market/en/media/condac/functioning/index.htm
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4. DANISH COMPANY CONVICTED FOR SPAMMING
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The Danish company Fonndanmark was convicted for spamming last week. The
company, specialised in human resource software, has to pay a fine of EUR
2.000 for sending out 156 unsolicited commercial e-mails to 50 different
addresses. In Denmark, spamming is forbidden since June 2000, under section
6a(1) of the Danish Marketing Practices Act (Markedsforingsloven). The act
creates a very broad privacy-protection, for both natural and legal persons
and authorities. The company was sued by the Consumer Council, the
supervisory authority of the anti-spam legislation.
Implementing Art. 13 of the new EU Privacy Directive will mean a
deterioration of Denmark's privacy-protection. According to the Directive,
people that have already given their address to companies, can still be
spammed with advertisements for 'similar services'. This policy is called
'soft opt-in'. The Danish act did not allow for that kind of implicit prior
consent. The amendment is expected to enter into force 25 July 2003.
(Contribution by Rikke Frank Jørgensen, Digital Rights Denmark)
Danish Consumer Council
http://www.forbrugerstyrelsen.dk
Press release about the case in Danish:
http://www.forbrugerstyrelsen.dk/presse/03/pm010503.htm
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5. EUROPEAN COURT OF JUSTICE RULES ON COPYRIGHT FEES
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A recent verdict from the European Court of Justice implies that all EU
countries should choose the same legislative translation of 'equitable
remuneration', a crucial formula in the European Copyright Directive.
Weighing the case of the Dutch copyright collecting society SENA versus the
national broadcasting organisation NOS, the Court explains how the 1992 EU
directive on rental and lending rights should be interpreted. Equitable
remuneration "must be interpreted uniformly in all the Member States and
applied by each Member State; it is for each Member State to determine, in
its own territory, the most appropriate criteria for assuring, within the
limits imposed by Community law and Directive 92/100 in particular,
adherence to that Community concept."
From 1984 to 1994 the yearly amount the NOS paid the collecting society
varied between EUR 272.000 and EUR 317.000. After the entry into force of
the 1992 Directive, the new collecting society SENA demanded a yearly
amount that was 10 times as high, EUR 3.4 million. Though it is up to the
Dutch High Court to decide what the amount will be, and what specific
criteria should be used to determine it, the European Court clearly sides
with the arguments of the collecting society.
The verdict might cause a lot of head ache for legal officials, since
equitable remuneration has been interpreted very freely in the different EU
member states. The governments of the Netherlands, Germany, Portugal,
Finland and the United Kingdom as well as the European Commission had
pleaded with the Court to ignore the reasoning of SENA's lawyers,
contending that the 1992 Directive deliberately omitted to lay down a
detailed and universally applicable method for calculating the level of
such remuneration.
Verdict (in all EU languages)
http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!prod!
CELEXnumdoc&numdoc=62000J0245
Legal opinion on the verdict (in French)
http://www.droit-technologie.org/1_2.asp?actu_id=749
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6. SHAREHOLDERS GIVE BIG BROTHER AWARD TO BAYER AG
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Critical shareholders of the German medicine-company Bayer AG have
presented the Big Brother Award to the board during the annual shareholders
meeting in Cologne on 25 April 2003. The Award was given to the company in
October 2002 for demanding a drug test from every employee applying for
in-company training. Bayer did not bother to come to the award ceremony,
but members of FoeBuD, the organisers of the German Big Brother Award,
happily welcomed the opportunity to come to the board.
According to the jury report, the practice of demanding a urine sample from
every employee applying for in-company training is disproportional, the
result prone to mistakes, degrading and a very heavy invasion of the
privacy of all male and female employees. Though officially participation
to the drug test is voluntary, without consent the chances of getting an
education are minimal.
Full jury-report in German (25.10.2002)
http://www.big-brother-award.de/2002/.work/
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7. UPDATE ON CYBERCRIME TREATY
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Last month, Denmark signed the Council of Europe Cybercrime Convention. Now
all 15 EU States have signed it, but only two two countries (Albania and
Croatia) have ratified it. The Convention needs five ratifications before
it comes into force.
On 7 November 2002, an additional protocol on racism was adopted by the
Council of Europe's Committee of Ministers on 7 November 2002. Whilst a
number of countries have signed this 'Additional Protocol to the Convention
on Cybercrime, concerning the criminalisation of acts of a racist and
xenophobic nature, committed through the use of computer systems', none has
yet ratified it.
The treaty was severely criticised by civil rights groups from Europe and
the United States for giving invasive new surveillance powers to law
enforcement, lacking protections for privacy or other civil liberties, and
having a much wider impact than just the internet.
Full text of the Convention (in English and French -23.11.2001)
http://conventions.coe.int/Treaty/EN/WhatYouWant.asp?NT=185
Additional protocol on Racism and Xenophobia (07.11.2002)
http://www.coe.int/T/E/Legal_affairs/Legal_co-
operation/Combating_economic_crime/Cybercrime/Racism_on_internet/PC-RX(2002)24E.pdf
ACLU: 8 Reasons the International Cybercrime Treaty Should be Rejected
http://www.treatywatch.org/TreatyProblems.html
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8. RECOMMENDED READING: THE EUROPEAN UNION AND 'SEPTEMBER 11'
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Report by Jan Wouters & Frederik Naert from the Institute for International
Law, Leuven University (Belgium).
Extensive analysis of EU measures after 11 September, with excellent
references to sources,focussed on the development of the framework
decisions on terrorism andthe European arrest warrant (both adopted June
13, 2002).They conclude: "The EU has reacted to the September 11 events by
fairly quickly adopting an impressive number of measures, in many policy
areas. It has achieved the most progress in the field of cooperation in
criminal matters, although the jury is still out on whether the measures
adopted will all be effectively implemented and vigilance will be required
to ensure overall consistency and continuing respect for human rights,
democratic oversight and the rule of law."
The European Union and 'September 11' (January 2003)
http://www.law.kuleuven.ac.be/iir/WP/WP40e.pdf
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9. AGENDA
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12-14 May 2003, Rome, Italy - Workshop on Protection of Personal Data and
e-Commerce.
Workshop organised in the Regional Programme for the Promotion of the
Instruments and Mechanisms of the Euro-Mediterranean Market (EuroMed Market
Programme), aimed at all 27 Euro-Mediterranean Partners (15 EU Member
States + 12 Mediterranean Partners)
Contact: Salvador Font Salas <s.font at eipa-ecr.com>.
21-23 May 2003, Paris, France - Free Software Conference "Autour du Libre 2003"
Fifth annual edition, held at the ENST (Ecole nationale supérieure des
télécommunications). The conference is in French and is organized by the
Group of Telecommunications Schools, in cooperation with the National
Center for Pedagogical Documentation.
This year the conference general theme is : "Free Software, a Choice of
Society ?" Admission is free of charge but registration is needed.
http://www.autourdulibre.org/
13-14 June 2003, Amsterdam, The Netherlands - Freedom of the Media and the
Internet
2-day conference organised by OSCE, the Organisation for Security and
Co-operation in Europe.
http://www.osce.org/events/
25 June 2003, London, United Kingdom - International Big Brother Award
Places at the awards are strictly limited. Anyone interested in attending
should contact Simon Davies at simon at privacy.org
http://www.privacyinternational.org/bigbrother/
30 June - 2 July 2003 St. Petersburg, Russia - Building the Information
Commonwealth
http://www.communities.org.ru/conference/
9-12 July 2003, Metz, France - RMLL2003
(Unofficial) fourth annual Libre Software meeting
http://www.rencontresmondiales.org/
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10. ABOUT
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EDRI-gram is a bi-weekly newsletter from European Digital Rights, an
association of privacy and civil rights organisations in Europe. Currently
EDRI has 10 members from 7 European countries. EDRI takes an active
interest in developments in the EU accession countries and wants to share
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Newsletter editor: Sjoera Nas <edrigram at edri.org>
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