Opening Up the Telecoms Package for the Open Rights Group

My posting record has continued to be a bit thin of late thanks to the pressures of the Bar Vocational Course. (And if you're reading this in the UK, BBC 2's new series 'The Barristers' starts tonight, featuring the joys of the BVC). However, part of my work of late has been a pro bono project that came my way from the Open Rights Group, via Prof Lilian Edwards (aka Pangloss).

Detailed accounts of the background are given by ORG here and Prof Edwards here, but in a nutshell I was asked to review the latest batch of amendments to the core group of Directives governing EU telecoms law. In particular, my remit was to see what had happened to measures inserted by MEPs to ensure that disconnection sanctions - the so-called 'Three Strikes' measures - could only be implemented via due process of law. I was very helpfully assisted by Monica Horten of IpTegrity.com, whilst Judith Rauhofer at UCLAN provided useful advice and of course Prof Edwards oversaw the whole effort; I'm especially grateful to her for comments on the text as it developed and for putting together a very clear and forceful summary for our final report.

Our findings? Yes, there are elements of the Telecoms Package as it stands that raise serious concerns. In particular, some of the measures explicitly inserted by MEPs to ensure due process have disappeared, although it does seem that there are efforts being made to keep at least one in place. Also, some of the definitions of the sort of content or threat that would give grounds for communications providers to read traffic (with associated privacy concerns) are potentially very broad.

I feel I should make my own position clear. As an aspiring IP lawyer I think that copyright protection is a good thing - so long as it is properly regulated, clear in scope and applied under the aegis of the courts. To take an analogy with land law, the law of 'real' property, we regulate land ownership under a system that protects land-owners whilst at the same time recognising rights-of-way, providing for boundary disputes and setting legal constraints on how we deal with land-owners. I don't agree with those who scoff at the whole idea of IP, any more than I'd go along with ideas to allow anyone to do what they wanted on anyone else's land. But equally, nor would I support a proposal to allow large land-owners to take over all responsibility for controlling access to their estates, including the power to decide for themselves if a right-of-way or easement existed and to eject with extreme force anyone they considered might be trespassing. The proposed measures could well lead to providers flagging legitimate peer-to-peer filesharing or fair-dealing use of copyright material as being illicit, whilst denying those affected recourse to the courts to prove their legal rights.

From here on, it's over to the ORG to take this matter forward, and I return to the more mainstream BVC joys of the Civil Procedure Rules, sentencing policy and drafting Particulars of Claim. Oh, and with any luck maybe even posting some IP and technology law stories here - there have certainly been plenty of interest lately. But this has been a fascinating project to be involved with, as well as providing an at times alarming insight into the process by which EU law is made.