*This Snowden thing isn't blowing over, folks.
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EDRi-gram
biweekly newsletter about digital civil rights in Europe
Number 11.21, 6 November 2013
Contents
1. EU Council worries that data protection reform is too fast
2. NSA's long data collection arm reaches everybody
3. The Russian govt seeks to increase its control over the Internet
4. Slovakia: Court orders an ISP to stop breaching Net Neutrality
5. NGO coalition’s letter to UK Prime Minister on surveillance concerns
6. Europe v Facebook’s Irish complaint again on the table
7. ENDitorial:EP draft report on private copy levies–serious or satire?
8. Recommended Agenda
8. Recommended Reading
9. Agenda
10. About
1. EU Council worries that data protection reform is too fast
The recent EU Council allegedly decided to slow down the speed of the
reform of data protection arguing that it was moving too fast.
Germany, for example, was reportedly worried about "not moving too
quickly". By a strange coincidence, this is exactly the same argument
used by the main lobbying groups. However, if the data protection reform
is moving too "quickly", it is difficult to imagine what "slow" might
look like.
The process of reforming the European data protection framework started
in 2009 with a stakeholder consultation, followed by another
consultation in 2011, a 119-page Communication from the Commission in
2011, a resolution from the Parliament in 2011, a proposal from the
Commission in January 2012 and a vote of the responsible committee in
the European Parliament in October 2013.
Each Member State government in the EU has developed a negotiating
position and took part in working groups, discussions and numerous
meetings with lobbyists.
The following non-exhaustive list describes the steps that were taken
until now by each institution. Direct links are not provided for all
items but one can check every event against the institutions' websites.
The following European Parliament Committees have already carried out
analyses of the proposals and finalised their respective views of the
dossier:
IMCO - Internal Market and Consumer Protection ITRE - Industry, Research
and Energy JURI - Legal Affairs EMPL - Employment LIBE - Civil Liberties
1. Commission
- May 2009 Launch of a public consultation by the Commission
- November 2010 First Commission's memorandum on data protection
- June 2011 Speech of Vice-President Viviane Reding at British
Bankers' Association Data Protection and Privacy Conference
- November 2011 Speech of Vice-President Viviane Reding at
Industry Coalition for Data Protection - American Chamber of
Commerce to the European Union
- January 2011
- End of the second public consultation
- Official discussion with the Council and
Member States representatives
- May 2012 Speech of Vice-President Viviane Reding at Spring
Conference of European Data Protection Authorities
- June 2012 Justice Council
- December 2012 Speech of Vice-President Viviane Reding at the
Annual European Data Protection and Privacy Conference
- January 2012: Proposal of the Commission with impact
assessment, factsheets and public opinion surveys
- February 2013 The Proposed General Data Protection
Regulation: The Consistency Mechanism Explained
- March 2012
- Commission MEMO for Justice Council
- Speeches of Vice-President Viviane Reding in the
Justice Council and at the Annual Cloud Computing Conference
- Meeting with German Minister of Interior on data
protection
- June 2013 Vice-President Reding's intervention during Justice
Council Press Conference
- October 2013 Vice-President Reding's intervention at the
Justice Council on the data protection reform and the
one-stop shop principle
2. Council of the European Union (id est Council of Ministers)
- January 2011 Official discussion with Commission and Member
States representatives
- May 2012 Informal dinner of Heads of State or Government
- June 2012 Debates in Home and Justice Affairs and Economic
and Financial Affairs
- September 2012 Debates in Economic and Financial Affairs,
General Affairs and Home and Justice Affairs
- October 2012 Debate Home and Justice Affairs
- November 2012 Debate Home and Justice Affairs
- December 2012 Legislative deliberations and press release.
Progress report of the Cypriot Presidency of the Council of
the European Union.
- February 2013 Comparative table: Commission proposal for a
General Data Protection Regulation - 1995 Data Protection
Directive
- March 2013
- Legislative deliberations and note from the Council
Presidency on the implementation of risk-based approach and
flexibility for the Public Sector
- Debate Home and Justice Affairs
- May 2013
- Compromise Text Proposed by the Irish Presidency
(Chapters I-IV) and note from the Irish Presidency
- Debate Economic and Financial Affairs
- June 2013
- Debate Home and Justice Affairs
- Council conclusions following the Commission
Communication on the European Information Exchange Model
(EIXM)
- July 2013 Working group on Information Exchange and Data
Protection (DAPIX)
- October 2013
- Debate Home and Justice Affairs and discussion with
Commissioner for Justice, Viviane Reding
- Council supports "one-stop-shop" principle
- Conclusions and statements of Heads of State and
Government
- Autumn 2013 Informal negotiations with the European Parliament
3. European Parliament
- Draft opinions
- September 2012 IMCO
- October 2012 JURI
- November 2012 EMPL and ITRE - Final opinions
- January 2013 IMCO
- February 2013 ITRE
- March 2013 EMPL and JURI - IMCO, JURI, EMPL and ITRE hearings, meetings and studies
- May 2012 ITRE exchange of views
- June 2012
- IMCO working group on E-Commerce, including
data protection
- IMCO exchange of views
- July 2012 JURI debate
- November 2012
- ITRE debate
- IMCO debate
- EMPL debate
- JURI debate
- December 2012
- IMCO debate
- ITRE hearing of industry and civil society
representatives
- ITRE study on «Impact on EU Innovation and
Competitiveness» of the European Data Regulation
- JURI exchange of views
- January 2013
- ITRE debate
- EMPL debate
- JURI debate
- February 2013
- EMPL debate
- JURI debate
- September 2013 ITRE study on «Data and Security
Breaches and Cyber-Security Strategies in the EU and its
International Counterparts»
4. LIBE report
- January 2013 Draft
- March 2013
- 3133 amendments to draft report
- Rapporteur's draft report on amendments
- Vote postponed
- June 2013 Vote postponed again
- October 2013 Vote - LIBE hearings, meetings and studies
- September 2011 Study: «Towards a New EU Legal
Framework for Data Protection and Privacy - Challenges,
Principles and the Role of the European Parliament»
- February 2012 Committee referral announced in
Parliament, 1st reading/single reading
- May 2012
- Workshop (industry, civil society and
academia)
- Exchange of views with the Commission
- July 2012 Working Document 1
- October 2012 Working Documents 2 and 3
- March 2013
- Study: «Protection of Personal Data in
Work-Related Relations»
- Debate with European Data Protection
Supervisor, Article 29 Working Party, Irish Presidency and
Commission's and Council's representatives
- May 2013
- Meeting with European Data Protection
Supervisor
- Debate
- June 2013
- Exchange of views with Commissioner for
Justice, Viviane Reding
- Meeting on Passenger Name Record and Data
protection regulation
- July 2013
- Debate
- Meeting with Lithuanian Presidency of the
Council
- September 2013
- Four Inquiry Meetings on PRISM scandal
- Leaflet with studies related to Data
protection
- October 2013
- Three Inquiry Meetings on PRISM scandal
- Interparliamentary Committee Meeting
- Study on Mass surveillance - Others
- September 2012 Directorate General for Internal
Policies on Economic and Scientific Policy of the European
Parliament, Study on «Reforming the Data Protection Package»
- May 2013 European Parliament Policy Department
Studies on Data Protection Issues – Leaflet and Seminar
- September 2013 Directorate General for Internal
Policies on Economic and Scientific Policy of the European
Parliament, Study on «The US surveillance programmes and their
impact on EU citizens' fundamental rights»
4. National Parliaments
- March 2012 Resolution of the French Senate, Reasoned Opinion
of the Swedish Parliament and Decision of the German
Bundesrat.
- April 2012 Reasoned Opinion of the Italian Chamber of
Deputies and Reasoned Opinion of the Belgian Chamber of
Representatives
- May 2012 Letter from the Dutch Senate Standing Committee for
Immigration & Asylum/Justice and Home Affairs Council and
Final Statement of the Czech Senate
- October 2012 Report by the UK Justice Select Committee
5. Others
- January 2012 Opinion of Article 29 Working Party
- February 2012 Opinion of European Union Agency Fundamental Rights
- March 2012 Opinion of European Data Protection Supervisor
- July 2012 Opinion of European Economic and Social Committee on
the General Data Protection Regulation and of Article 29 Working Party
Council worried about moving too quickly (31.10.2013)
http://www.euractiv.com/specialreport-digital-single-mar/france-germany-form-anti-spy-pac-news-531306
Lobbyists worried about moving too quickly (31.10.2013)
http://www.euractiv.com/specialreport-digital-single-mar/france-germany-form-anti-spy-pac-news-531306
(Contribution by Xavier Gillard, EDRI intern) (((that was quite interesting
in all its elephantine Brussels glory, Xavier)))
2. NSA's long data collection arm reaches everybody
The new revelations from Snowden show that NSA seems to spy on
everybody, allies or enemies alike, collecting data form everywhere and
everyone, in order to get a “diplomatic advantage” over allies such as
France and Germany or an “economic advantage” over countries such as
Japan or Brazil. Or even more?
NY Times explains that not only NSA is demanding the data it gathers,
but also other agency’s “customers” are asking for different data from
NSA. And "customers" means in this context "not only the White House,
Pentagon, FBI and CIA, but also spread across the Departments of State
and Energy, Homeland Security and Commerce and the United States Trade
Representative (USTR)."
But USTR is in fact the US administration counterpart that is
negotiating with the European Commission on TTIP - the planned EU/US
free trade agreement. Which sheds a new light on the whole TTIP process.
Also a new light on the news already reported by EDRi on 13 June 2013 -
that the European Commission watered down its proposed Data Protection
Regulation to weaken rules for transferring data to law enforcement
authorities outside the EU.
Der Spiegel magazine has claimed that a report shows that NSA has been
spying on German Chancellor Angela Merkel's mobile phone since 2002.
Following this disclosure, the Chancellor phoned the US president who
apologised to the German chancellor and promised he knew nothing of the
alleged phone monitoring.
Yet, on 27 October 2013, Bild newspaper quoted US intelligence sources
stating that NSA head Keith Alexander briefed Obama about the covert
operation targeting Merkel in 2010, personally.
According to Der Spiegel, a unit called Special Collection Services,
based on the fourth floor of the US embassy in Berlin, was in charge
with monitoring communications in the German government quarter,
including Mrs Merkel’s communications. Similar units were based in
around 80 locations all over the world.
Germany's Interior Minister Hans-Peter Friedrich told Bild that such an
operation would be illegal in Germany, considering that those
responsible for such an operation should be held accountable.
Germany and France said on 25 October 2013 that they wanted the US to
sign a no-spy deal by the end of the year.
Also Spain has started reacting by asking explanations from the US
officials after having been confirmed that Spanish politicians and
members of the Parliament had been also targeted by NSA. Only that Spain
is in a more delicate position than France or Germany as its relations
to the US is a priority.
All these disclosures have put US government and NSA in a delicate
position. The White House has ordered a review of NSA’s domestic and
foreign intelligence collection.
“From N.S.A.’s point of view, it’s a disaster. Every new disclosure
reinforces the notion that the agency needs to be reined in. There are
political consequences, and there will be operational consequences,”
said Matthew M. Aid, an intelligence historian, author of a 2009 book on
the NSA.
US bugged Merkel's phone from 2002 until 2013, report claims
(27.10.2013) http://www.bbc.co.uk/news/world-europe-24690055?print=true
Merkel’s cell phone has been on U.S. eavesdropping list since 2002 (only
in German, 26.10.2013)
http://www.spiegel.de/politik/deutschland/nsa-ueberwachung-merkel-steht-seit-2002-auf-us-abhoerliste-a-930193-druck.html
No Morsel Too Minuscule for All-Consuming N.S.A. (2.11.2013)
http://www.nytimes.com/2013/11/03/world/no-morsel-too-minuscule-for-all-consuming-nsa.html?hp&_r=1&
Washington controlled millions of calls and spied politicians in Spain
(only in Spanish, 24.10.2013)
http://internacional.elpais.com/internacional/2013/10/24/actualidad/1382642579_515479.html
NSA FILES: DECODED – What the revelations mean for you (1.11.2013)
http://www.theguardian.com/world/interactive/2013/nov/01/snowden-nsa-files-surveillance-revelations-decoded#section/1
Data protection in TTIP/TAFTA – how to make a bad situation worse (13.06.2013)
http://www.edri.org/nodpinttip
3. The Russian govt seeks to increase its control over the Internet
The Russian security authorities are taking new measures to expand their
surveillance of the Internet by requiring ISPs to store all traffic
temporarily and make it available to the Federal Security Service (FSB).
According to an article published by newspaper Kommersant, Vympelkom,
the owner of the mobile network Beeline, made a complaint to the
Ministry of Communications about the new decree made public on the 21
October 2013, developed by the Ministry together with the FSB, which
will require ISPs to monitor all Internet traffic, including IP
addresses, telephone numbers, and usernames.
The decree, which is to come into force in July 2014, also requires that
ISPs store the traffic for 12 hours after collection and grant the
security services exclusive access to the data. Vympelkom argues that
the decree infringes several articles of the Russian Constitution,
including the rights to privacy and due process.
Julius Tai, Managing partner of law firm Bartolius, believes that the
order is violating not only the Constitution but also the Criminal Code,
the Criminal Procedure Code and the Law on the protection of personal
data. "The existing legal and technical possibilities of access to
personal data of Internet users and law enforcement agencies are enough.
The unlimited expansion of these opportunities will lead to a violation
of the rights of ordinary citizens ..." said Mr. Tai
FSB is already monitoring the Internet through SORM, the System for
Operative Investigative Activities, which requires ISPs to place “black
boxes” on their servers, routing all internet traffic through FSB
offices in real time, and to keep track of IP addresses and user IDs.
According to blogger Eldar Murtazin, an analyst at the Mobile Research
Group, as FSB does not have the resources or the technology to
effectively monitor all Internet traffic in real time, it would actually
outsource the initial data collection and storage to the ISPs and the
12-hour storing requirement would serve as a buffer.
Of course, this will also involve large costs on the ISPs which have to
buy and maintain themselves the necessary data-gathering equipment as
the decree says nothing about the authorities providing any financing
for this.
Russian Internet Surveillance: Meet the New Boss, Same as the Old Boss
(1.11.2013)
http://advocacy.globalvoicesonline.org/2013/11/01/russian-internet-surveillance-meet-the-new-boss-same-as-the-old-boss/
Russian spy agency seeks to expand Internet surveillance (21.10.2013)
http://www.reuters.com/article/2013/10/21/net-us-russia-internet-idUSBRE99K0M920131021
Federal Security Server (only in Russian, 21.10.2013)
http://www.kommersant.ru/doc/2324684
4. Slovakia: Court orders an ISP to stop breaching Net Neutrality
The first instance court - District Court in Bratislava I, issued on 24
October 2013 a preliminary injunction prohibiting continuance of net
neutrality breach by one of the Internet access providers. The
injunction was granted in a ongoing unfair competition law case between
two ISPs, Slovak Antik and Dutch UPC.
The case already started in March 2013, when UPC blocked Internet
Protocol television (IPTV) service provided by Antik via infrastructure
of UPC by blocking its public IP address. This meant that customers who
used Internet access from UPC, were technically precluded from using
IPTV service of Antik (set-top boxes wouldn't work for them). UPC did
this apparently in order to block competition on its infrastructure,
trying "to help" its own cable TV retransmission service. The case is
therefore about two vertically integrated competitors, who both compete
not only on the market of Internet access, but also on the market of TV
retransmission.
After this became public, I personally and EISi feared that this bad
example of UPC blockage might be followed by other ISPs pursuing their
commercial interests, thus leading to a totally balkanized Internet
access in Slovakia. For this reason, I authored a short opinion on
behalf of Slovak based think-thank European Information Society
Institute (EISi) outlining applicable existing laws to net neutrality in
Slovakia. The opinion stresses that despite the non-existence of
explicit net neutrality principle in Slovak telecommunication laws,
many, but not all, instances of net neutrality breach can actionable
even under existing antitrust, unfair competition and consumer laws. The
case of Antik v. UPC was found to very likely breach both unfair
competition and consumer laws (as with lot of cases, UPC is not dominant
here and even "plays" alone).
The argument was that in B2B relationships, blocking a competitor´s
service (IPTV) on its own infrastructure that is provided as a service
on a different market (market for Internet access), leads to acquiring
of unfair commercial benefit, because it cuts all consumers of Internet
access, also of access to competing TV retransmission (cutting part of
the market for itself by default). Otherwise, any vertically integrated
ISP (as he has strong business incentives) could block out any
competitor that provides its services using Internet.
Moreover, another argument was that consumer´s rights might be infringed
upon in two ways:
a) by misleadingly labelling and selling the service as "flat rate"
Internet access, when the service in fact does not provide general
access to Internet (transparency argument), and
b) by materially distorting the economic behaviour of the consumer,
because the consumer base of UPC is technically cut from different
competing services on an unrelated market, thus leading it artificially
to decide for UPC TV retransmission (discrimination argument).
Last but not least, it was highlighted that even if Antik would provide
its retransmission service without appropriate license (i.e. conduct
unfair competition himself), UPC can only self-protect itself from this
allegedly unfair conduct if there is no collateral damage on consumers.
Otherwise, self defence, does not apply because the wrongful behaviour
is also directed against those who are not acting wrongfully. Thus, the
consumer cannot become a hostage of two rivalry ISPs.
After several PR battles of both companies, Antik hired a technical
expert to document the blockage and decided to sue UPC claiming that
such blockage or degradation of its service amounts to unfair
competition. The action of Antik puts forward our B2B arguments, namely
that blockage or degradation within this competitive relationship
contradicts the general clause of unfair competition set in Section
44(1) of the Commercial Code.
The District Court in Bratislava I now granted an injunction (8
Ncb/90/2013-321) against UPC prohibiting it from blocking or degrading
the IPTV service on its infrastructure for its Internet access
consumers. Preliminarily, the court found the arguments of the plaintiff
convincing in ex parte proceedings. UPC, in the meantime, has removed
the block, but announced to continue to fight the legal battle, as it
considered it to be of a great importance for the industry. The
preliminary injunction can be still appealed. Antik now has to file the
lawsuit itself within a month.
I and UPC apparently agree at least on this last point. The case is of a
great importance. But for consumers. For exactly this reason, EISi,
which also acts as (digital) consumer association, is currently
considering to intervene in the case, to add a so much needed consumer
perspective to it.
As both of the above consumer arguments we make (transparency &
discrimination) have their basis in the Union law, namely the Unfair
Commercial Practices Directive (2005/29/EC), I would welcome all your
feedback and experience you might have from other jurisdictions.
Expert opinion to violations of network neutrality (only in
Slovak,26.03.2013)
http://www.eisionline.org/index.php/projekty-m/ochrana-spotrebitela-m/62-sietova-neutralita
UPC allows set top boxes Antik on its network (only in Slovak,
29.10.2013)
http://ekonomika.sme.sk/c/6987979/upc-ma-podla-sudu-povolit-set-top-boxy-antiku-vo-svojej-sieti.html
Original blog post - The Slovak Court Orders an ISP to Stop Breaching
the Net Neutrality (31.10.2013)
http://www.husovec.eu/2013/10/the-slovak-court-orders-isp-to-stop.html
(Contribution by Martin Husovec - Legal Counsel & Researcher at EISi)
5. NGO coalition’s letter to UK Prime Minister on surveillance concerns
On 3 November 2013, a large international coalition, organised by EDRi
member Article 19, including 70 free speech, internet and media freedom
and human rights organisations, sent an open letter to UK Prime Minister
David Cameron, showing concern about the erosion of fundamental rights
and freedoms in the country.
The letter comes as a reaction to UK government's response to Edward
Snowden disclosures revealing mass surveillance of digital
communications by the UK security agency, GCHQ. "We have joined together
as an international coalition because we believe that the United Kingdom
government's response to the revelations of mass surveillance of digital
communications is eroding fundamental human rights in the country. The
government's response has been to condemn, rather than celebrate
investigative journalism, which plays a crucial role in a healthy
democratic society," the letter states.
At the end of October, David Cameron threatened to take serious measures
against the Guardian and other newspapers that have disclosed the NSA
documents revealed by Snowden. "I don't want to have to use injunctions
or D notices or the other tougher measures. I think it's much better to
appeal to newspapers' sense of social responsibility. But if they don't
demonstrate some social responsibility it would be very difficult for
government to stand back and not to act," stated Cameron who also
encouraged a parliamentary committee to investigate whether the Guardian
has broken the law or damaged national security in this matter.
The open letter signed by the international coalition expresses deep
concern about the use by the UK government of the national security
argument as a pretext to restrict individuals and media organisations in
discussing the issue. “National security should never be used to justify
preventing disclosures of illegalities or wrongdoing, no matter how
embarrassing such disclosures may be to the UK or other governments.”
The coalition believes people of the UK should be informed and should be
able to openly discuss about the acceptable parameters of state
surveillance, as well as a system that should provide the oversight and
accountability of such surveillance.
“If the government opened every letter you received and took a photocopy
of it without you knowing, I’m confident most people would think that
was unacceptable. As a result of the Guardian’s reporting we now know
that the security agencies have the power to do the equivalent thing
online. In essence, this is about the distinct possibility that private
personal correspondence, photographs, bank statements and more can be
accessed by agents of the state without appropriate oversight” said
Thomas Hughes who also added that the government reaction was that of
shooting the messenger: “Edward Snowden, David Miranda, Glenn Greenwald
and the Guardian are being painted as the villains of this piece. They
are being targeted for raising a matter of serious public interest. This
seems to be a convenient distraction from what might otherwise be a
story about state overreach and inadequate oversight of power.”
Article 19 Press Release: 70 rights groups caution Cameron over UK
response to surveillance (3.11.2013)
http://www.article19.org/resources.php/resource/37332/en/70-rights-groups-caution-cameron-over-uk-response-to-surveillance
NSA leaks: UK government reaction eroding freedom, rights groups warn
(4.11.2013)
Human rights groups' open letter to David Cameron on surveillance
(3.11.2013)
http://www.theguardian.com/commentisfree/2013/nov/03/human-rights-groups-letter-david-cameron
David Cameron makes veiled threat to media over NSA and GCHQ leaks
(28.10.2013)
http://www.theguardian.com/world/2013/oct/28/david-cameron-nsa-threat-newspapers-guardian-snowden
6. Europe v Facebook’s Irish complaint again on the table
The Irish High Court has decided to review the lack of reaction of the
Irish Data Protection Commissioner (DPC) in relation to the PRISM scandal.
This decision is a result of DPC’s reaction to student group Europe v
Facebook (EvF) which had filed a complaint against Facebook Ireland Ltd,
considering that it violated data protection laws by “exporting data” to
its US-based parent company. "If a European subsidiary sends user data
to the American parent company, this is considered an “export” of
personal data. Under EU law, an export of data is only allowed if the
European subsidiary can ensure an “adequate level or protection” in the
foreign country,” stated EvF.
EvF also alleged that Facebook had cooperated with NSA within PRISM
programme. However, in July 2013, DPC Billy Hawkes claimed that there
was "nothing to investigate" as Facebook had acted within the terms of
the “Safe Harbor” EU-US data-sharing agreement which allows
transatlantic data transmission if US companies self-certify that they
meet EU privacy requirements. The commissioner added that the agreement
also permited data sharing if law enforcement authorities requested it.
Austrian data privacy campaigner Max Schrems, member of EvF, has
challenged the refusal of the commissioner to investigate the
Dublin-based Facebook subsidiary and asked him to investigate Edward
Snowden’s allegations that it shared European user data with US
authorities. He also asked DPC to investigate whether companies under
its jurisdiction were in breach of EU data protection regulations. His
complaint was dismissed as “frivolous and vexatious”.
“The DPC simply wanted to get this hot potato off his table instead of
doing his job. But when it comes to the fundamental rights of millions
of users and the biggest surveillance scandal in years, he will have to
take responsibility and do something about it,” said Schrems.
With the High Court’s decision, the DPC must now react. EvF hopes for a
ruling in the next six months.
Schrems has filed similar Prism-related complaints in several European
countries, as the ones against Microsoft and Skype in Luxembourg and
against Yahoo in Germany, which are still being investigated by the
competent data protection authorities.
Facebook decision can be reviewed (24.10.2013)
http://www.irishtimes.com/business/sectors/technology/facebook-decision-can-be-reviewed-1.1571049
Facebook 'PRISM' decision to be reviewed by Irish High Court
(24.10.2013)
http://www.telegraph.co.uk/technology/facebook/10401419/Facebook-PRISM-decision-to-be-reviewed-by-Irish-High-Court.html
PRISM: Irish DPC's Refusal to investigate Facebook being reviewed by
High Court (24.10.2013)
http://www.europe-v-facebook.org/PA_24_10_en.pdf
7.ENDitorial:EP draft report on private copy levies – serious or satire?
French Socialist MEP Françoise Castex published her draft report on
private copying levies on 9 October. The biggest question that the
document raises is... are you serious, Ms Castex?
The policy issue being addressed is that “creators” are meant to be
“compensated” for private copies that are made of legally acquired
content, such as music or printed material. In some EU countries there
are no levies, in some EU countries there are low levels of levies. In
France, Ms Castex' country, the levies are by far the highest in Europe,
generating a well-funded copyright industry that is very effective at
lobbying to protect its own interests.
There is therefore a huge problem to be addressed – should we have this
extraordinarily inefficient tax, where every euro generated costs 52
cents to collect? Should we be compensating artists – or anyone – for
losses that have never been documented? These and many other important
questions are diligently avoided by Ms Castex, who prefers to focus on
sophistry, misinformation and misdirection.
On the key point of how the levies should be calculated, Ms Castex
chooses not to argue for a scientific analysis of whether or not there
is a loss that should be compensated. Instead, she argues that there
should be a “negotiating arrangement for the rates applicable” and then
argues against herself, suggesting that there should be a consultation
to “simplify procedures” to ensure “fairness and objectivity”...
objectivity that would be impossible if her suggestion that the levels
be negotiated were to be accepted. In the increasingly tense Castex vs
Castex debate about the calculation of the amount that should be
charged, Castex also argues that “levies should be calculated on the
basis of the possible harm to rightsholders” (rather than, for
example... the negotiating arrangement that she also supports?).
Even though the issue is entirely irrelevant to the problem of private
copying levies as the money is collected permits copying of legally
obtained content, Castex argues that taxpayers (“Member States”) should
additionally redirect their (which?) “anti-pirate” (sic) campaigns to
propaganda that highlights “the benefits of private copying levies”. She
does not indicate what benefits she is referring to or where the logical
link to piracy may or may not be. Bizarrely, she also argues that 25% of
the money collected should be actively withheld from the artists and
spent on promoting “creative and performance arts”.
Faced with the fact that audiovisual and audio products are increasingly
provided on a per-view basis, Castex launches another bitter argument
with herself. She says that contractual arrangements (licensing, in
other words) “cannot be allowed to prevail to the detriment of private
copying exemption arrangements” but also that “licence-granting
practices are being viewed as an alternative to the system of private
copying levies”. The bottom line is that private copying is being
restricted by technological restrictions. While it is illegal under EU
law to circumvent these restrictions, even if this circumvention is to
allow private copying that is permitted (and paid for through levies),
Castex does not propose legalising circumvention. She also does not
propose the banning of such technologies. Instead, she calls for their
“elimination” - but does not indicate how this should be done. One
imagines that if she wanted them to be banned by law, that is what she
would have said. We know what she doesn't mean. What she does mean, on
the other hand, is less clear.
It is in the area of statistics where the draft report is its most
absurd. The text omits any reference to the cost of the levies to the
consumer and whether this is appropriate. It argues that levies
represent a “small proportion” of the turnover of equipment
manufacturers (possibly because they are equipment manufacturers and not
broadcasters or music retailers), yet is “a considerable amount for
artists”. Which artists? French artists, whose government imposes high
levies, British artists, whose government imposes no levies? We have no
way of knowing – Castex chooses not to tell us. She points out that 600
million Euro is collected and that the cultural industries employ 5
million people. If those 5 million people are relevant in this context,
they are relevant to the tune of, on average, 32 cents per day per job.
Are any of those jobs relying on the 32 cents per day on average, that
are received from private copying levies? We don't know. Ms Castex
chooses not to tell us.
Are the 5 million jobs in the cultural sector even relevant in this
context? We don't know. Is there any point in such a directionless,
chaotic report? We don't know.
Draft Report in Private Copy levies (20.09.2013)
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-519.560+02+DOC+PDF+V0//EN&language=EN
Compensation for private copying - an economic analysis of alternative
models (05.2011)
http://www.ametic.es/CLI_AETIC/ftpportalweb/documentos/migracion/media-Ou1-Informe%20Alternativas%20al%20Canon%20Digital_%20Ingles.pdf
(Contribution by Joe McNamee - EDRi)
8. Recommended Action
The Assises de la Justice - a forum on EU justice policies - seeks to
generate ideas which will contribute directly to shaping the European
Union's justice policy over the coming years. The Commission is looking
for contributions from anyone with an interest in the issues which will
be discussed during the conference, and more broadly on the future
justice policy of the European Union.
You are invited to submit your contributions to this debate until the
end of 2013. In order to feed the debate during the Assises de la
justice, preliminary contributions should be submitted by Monday 11
November.
http://ec.europa.eu/justice/events/assises-justice-2013/discussion_papers_en.htm
See also discussion paper on fundamental rights
http://ec.europa.eu/justice/events/assises-justice-2013/files/fundamental_rights_en.pdf
9. Recommended Reading
EDRi paper on Net Neutrality (11.2013)
http://www.edri.org/files/paper08_netneutrality.pdf
Privacy and Surveillance are the Elephant in the Room at OGP Summit
(1.11.2013)
http://techpresident.com/news/wegov/24483/privacy-and-surveillance-elephant-ogp-summit
Tim Berners-Lee demands countries deliver on open data promises
(31.10.2013)
http://www.telegraph.co.uk/technology/internet/10416029/Berners-Lee-demands-countries-deliver-on-open-data-promises.html
Registrars Clash at Verisign Over Seized “Pirate” Site Domains (3.11.2013)
http://torrentfreak.com/registrars-clash-at-verisign-over-seized-pirate-site-domains-131103/
Germany and Brazil introduce UN resolution affirming right to privacy,
condemning mass surveillance (1.11.2013)
https://www.privacyinternational.org/press-releases/germany-and-brazil-introduce-un-resolution-affirming-right-to-privacy-condemning-mass
Russian Facebook Not Responsible For Users’ Pirate Music Uploads
(26.10.2013)
http://torrentfreak.com/russian-facebook-not-responsible-for-users-pirate-music-uploads-131026/
10. Agenda
19-20 November 2013, Berlin, Germany
Berlin Open Access Conference: 10th anniversary of the Berlin
Declaration
http://www.berlin11.org/
27–30 December 2013, Hamburg, Germany
30C3 – 30th Chaos Communication Congress
https://events.ccc.de/congress/2013/wiki/Main_Page
22-24 January 2014, Brussels, Belgium
CPDP 2014: Reforming data protection: The Global Perspective
http://www.cpdpconferences.org/
3-5 March 2014, San Francisco, California, USA
RightsCon: Silicon Valley
https://www.rightscon.org/
19-20 March 2014, Athens, Greece
European Data Forum 2014 (EDF2014)
CfP by 10 December 2013
http://2014.data-forum.eu
24-25 April 2014, Barcelona, Spain
SSN 2014: Surveillance Ambiguities & Asymmetries
http://www.ssn2014.net/
28-29 April 2014, Newcastle upon Tyne, United Kingdom
OER14: building communities of open practice
http://www.oer14.org/
11. About
EDRi-gram is a biweekly newsletter about digital civil rights in Europe.
Currently EDRi has 35 members based or with offices in 21 different
countries in Europe. European Digital Rights takes an active interest in
developments in the EU accession countries and wants to share knowledge
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Newsletter editor: Bogdan Manolea
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