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By: MarkJ - 15 April, 2011 (7:44 AM)
p2p copyright uk ISP file sharing laweuropean union flagThe highest court in the European Union (EU), the European Court of Justice (ECJ), has been told by its own Advocate General, Pedro Cruz Villalón, that measures which order a broadband ISP to install a system for filtering and blocking electronic communications in order to protect intellectual property rights (copyright) in principle "infringes fundamental rights".

The Opinion was given as part of a legal challenge to an earlier ruling in the Belgian court against one of the country's ISPs, Scarlet. It's understood that the Belgian Society of Authors, Composers and Publishers (SABAM) had initially succeeded in getting the country's court to issue an injunction against the ISP that demanded they filter out or block any transfers that contained related music media of the "illegal" internet copyright infringement (piracy) variety.

Europe's own Copyright Directive does leave a door open for copyright owners to gain a court order against intermediaries whose services are used for piracy. However, it also states that ISPs themselves cannot be held accountable for the activity of third parties and must not be placed under an obligation to police such activity.

The Advocate General, Pedro Cruz Villalón, said:

It would make Sabam responsible for the cost of installing the filtering and blocking system. Thus, through that system, the legal and economic responsibility for combating illegal downloading of pirated works from the internet would largely be delegated to the internet service providers.

In view of those characteristics, Advocate General Cruz Villalón considers that the installation of that filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. By the same token, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.

Pedro Cruz Villalón further noted that any restriction on the rights and freedoms of internet users, such as those at issue here, would be "permissible only if it were adopted on a national legal basis which was accessible, clear and predictable".

Jérémie Zimmermann, Spokesperson for Citizen Advocacy group La Quadrature du Net, said:

"The advocate general (AG) conclusions make clear that asking Internet service Providers (ISPs) to police their networks to enforce copyright runs counter to fundamental rights. Let's hope that the Court will follow these conclusions, and that freedom of communication on the Internet will prevail over our outdated copyright regime.

Furthermore, the conclusions should compel the Commission to back away from its strategy to transform Internet companies into a copyright police monitoring their users' activities to prevent any potential infringement -- a strategy that is being pursued through ACTA and the upcoming revision of the IPRED enforcement directive.

Dogmatic copyright repression is a total failure, and policy-makers now need to look for constructive alternatives to fund artistic creation in the digital environment."

The Opinion is crucial for a number of reasons. Firstly, the verdict of the ECJ's Advocate General, while not strictly legally binding, does carry a huge amount of weight and can impact the outcome of such cases. Put another way, to ignore it would be very poor practice.

Secondly, broadband ISPs in the UK are already working with the government and Rights Holders to develop a similar Voluntary Code of Practice to block any website that is deemed to "facilitate" internet copyright infringement (here). The legal and costs issues are very similar.

Thirdly, the Motion Picture Association (MPA) is testing an equally similar UK law by filing an injunction against BT Retail which, using Section 97A of the Copyright, Designs and Patents Act, requires the broadband ISP to block access to a Newsgroup (Usenet) indexing website called Newzbin2 (here).

It goes without saying that the outcome of the ECJ's case, which isn't expected until later this year, could have far reaching implications. A "voluntary" code solution might work but it's unclear if such a thing would meet the Advocate General's criteria.
The Advocate General's Opinion (PDF)

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