EU redefines net anti-piracy directive

European bureaucrats have agreed on a directive to combat music and data piracy on the internet, but the proposals could make the net more expensive or a lot slower to navigate.

After months of lobbying, infighting and negotiation, representatives of the Council of the European Union (EU) have agreed the final draft of the Information Society: Copyright and Related Rights directive.

The directive has been designed to update the existing EU framework on copyright and related rights to reflect technological changes, to the benefit of both copyright holders and users. According to Forrester Research, in 1998 some 20bn euros (£12.7bn) worth of copyrighted material was duplicated on the internet without prior permission.

The directive's first draft initially caused outrage among the internet community by effectively outlawing caching by ISPs - the process of storing copies of files on servers without which the internet would slow down dramatically.

It was then amended after protests by ISPs, allowing them to cache some files, but not others.

However, while an ISP-friendly compromise over which files could be cached was almost reached at a meeting on 25 May, the final text agreed last week includes a much narrower definition of which files are exempt, and makes caching difficult without breaking the new copyright laws.

Only files that form an essential part of a technological process and which take place in the context of a transmission on a network meet the necessary conditions for exemption.

Unknown to them, ISPs may be left holding copies of copyrighted material on their servers that leave them open to copyright infringement lawsuits. Previously, ISPs removed files when asked by the copyright holder to do so.

Frits Bolkestein, Internal Market Commissioner, said: "For Europe's creative artists and copyright-based industries to derive maximum benefit, we need to ensure their intellectual property rights are protected. But that has to be weighed against the rights of other interests [such as] network operators. The balance has been delicate, but it is finally secured."

However, although the EU calls this a "satisfactory" balance between the needs of copyright holders and service providers, others, including those close to the negotiating process, say it is a messy compromise that leaves ISPs in an uncertain legal position.

One source called it "disappointing for ISPs and inconsistent", and another "an extremely poor piece of drafting".

Critics say the draft can be interpreted in conflicting ways and that the so-called recitals - guidelines given to governments on how to word legislation based on the directive - are inconsistent with the directive itself. These cycles, they say, allow 'essential' to be interpreted in a broader manner. This gives an exemption for more technical copies to be made, or more caching in other words.

"The legal framework is unclear. Until some clarification arises, ISPs are in an uncertain position," said a source.

Alternatively, ISPs could scrap caching files but at the cost of slowing down the internet for their users.

Timeline
April 1996: Original proposal: Copyright and Related Rights in the Information Society. Green Paper.

October 1996: Receives first reading in European Parliament, and is scrapped.

November 1996: Revived as Copyright and Related Rights in the Information Society. Follow-up to the Green Paper.

November 1997: Receives first reading in European Parliament, and is scrapped.

December 1997: Revived as Information Society: Copyright and Related Rights.

February 1999: Receives first reading in European Parliament, and is passed.

May 1999: Amendment to February text passed by European Parliament.

June 1999: Modified proposal goes to the Council of the European Union to form a common position.

May 2000: Hoped-for Council decision delayed at least until June.

June 2000: Draft agreed.

*July 2000: Ministers approve final draft. Administrative process to prepare for second reading before Parliament begins.

*September 2000: Procedures to give Bill second reading begin.

*November/December 2000: EU parliament votes. If approved, EU member states must introduce legislation within 18 months (June 2002*).

*unofficial