deadlock between the Council of Ministers and the European Parliament

[David Farber <dave () farber net>]

Begin forwarded message:

From: Sandra Keegan <sandra.keegan () gmail com>
Date: June 18, 2009 5:27:54 AM EDT
To: dave () farber net
Subject: correction to my email message of yesterday

Dave,
Since you have not published my email of yesterday, could you please  
use the text below if you decide to publish, which failed to refer to  
the deadlock between the Council of Ministers and the European  
Parliament plus a couple of small edits.  And please delete this  
intro. thanks.


Dave,

For IP, if you wish.

I have reported previously on the deadlock between the Council of  
Ministers and the European Parliament (EP) which rejected, during its  
last plenary in May, the principle of "three strikes you're out" for  
alleged violations of copyright online, a principle that was suggested  
for inclusion by France and the UK in the EU telecoms package.  The EP  
is in recess due to recent elections.  It will reconvene in July.   
When it reconvenes, the ball will be in the Council of Minister's  
court to convoke a conciliation procedure within six weeks, after  
which the two institutions will have six more weeks within which to  
come to an agreement on a legislative text, or else the entire set of  
legislative text lapses.  (There is scope for separating the  
directives and adopting some but not all.  However, without the  
framework directive, the other directives would have little meaning.   
There is also an option for either the EP or the Council to request a  
further six weeks extension.)

The rejection by the EP of the French-inspired copyright infringement  
provision (the French version of which has been invalidated by the  
French Constitutional Court) for the telecoms package was also opposed  
by the European Commission, so it would have required unanimity for  
the Council of Ministers to adopt it over the Commission's opposition,  
which it could not have done, unless there was an agreed version of  
the law between the EP and the Council, which clearly there wasn't and  
isn't.  In other words, one could say that the proposed copyright  
provision - "three strikes and the user is cut off" - has two strikes  
against it:  opposition by the EP and by the European Commission,  
which tables the legislation but does not adopt it, and whose views  
about the acceptability of changes to its proposal affect the margin  
by which it must be adopted in Council (majority or unanimity).

There is no such thing (strictly speaking) as a "third reading";  
rather it is a high stakes negotiation with a ticking clock in which  
both sides stand to lose face if the legislation lapses for lack of  
agreement between the two legislative institutions.  The EU telecoms  
package of 2002 was also adopted in final form in the context of such  
a conciliation procedure. The EP has considerable leverage (often  
coupled with popular support) and the Council usually has to  
compromise to avoid a disastrous public relations outcome (in that the  
EP is directly elected and the Council is composed of the  
representatives of the members of national governments, nationally  
elected by not directly to an EU institution).

On limitations (what Mike Kiely referred to as "net discrimination  
clauses"), the current and working version (and likely final version  
if the package is adopted since there is no disagreement on this  
between the institutions) of the texts requires disclosure by a  
service or network provider to its customers when it imposes  
"conditions limiting access to and/or use of services and  
applications, where such conditions are allowed under national law, in  
conformity with Community law".  This is a form of mandated  
transparency for users to know what limitations their services operate  
under. It seems to legitimate a number of controversial practices  
which have been much discussed in comments by IP'ers.

Mike's suggestion that the Commission be required to recognise that  
the internet and internet technologies are capable of providing  
functional equivalents to legacy telecom services before being allowed  
to have a say in the governance of ICANN has been overtaken by events.  
The Commission's agenda for ICANN is settled and is supported by the  
governments of the Member States of the EU, who see the governance of  
ICANN as an important political issue.  Whether or not the internet  
and its technologies offer functional alternatives to legacy telecom  
services is largely irrelevant to this agenda in the Commission's  
view.  Moreover, and regrettably, the service within the Commission  
dealing with telecoms policy development is quite separate from the  
services that deal with and develop internet policies.


Regards,

Sandra Keegan




-------------------------------------------
Archives: https://www.listbox.com/member/archive/247/=now
RSS Feed: https://www.listbox.com/member/archive/rss/247/
Powered by Listbox: http://www.listbox.com