"The greatest concern I have is that when issues are thrashed-out behind closed doors and neither legislators nor civil society is involved, it leads automatically to one-sided approaches," said former member of the European Parliament and CCIA Vice President Erika Mann. "A general and broad memorandum of understanding in this area, which would cover an agreement between ISPs and intellectual property rights holders, would challenge the E.U. legal framework. ISPs are reluctant to screen and notice IP-holders automatically, because it opens the door for screening for other causes including Internet filtering for political content. Concerning the review of IPR Enforcement Directive, we are deeply troubled as the language clearly tries to alter the Internet ecosystem from a purely 'infringement' point of view, rather than a holistic view of what's best for the Internet ecosystem in the long term."
Information was leaked last week to members of the European Parliament alleging that since mid-2010 the Commission has been holding talks behind closed doors to reach an agreement that could require ISPs to monitor Internet activity of customers for any signs of copyright infringement. These talks are believed to have excluded consumer watchdog groups, European Union privacy watchdogs and the European Parliament. Despite promises on Monday, the European Commission has not explained its position in relation to these allegations.
"These talks, if true, could well lead to the back-door imposition of a Hadopi-type regime throughout Europe, with the Commission's imprimatur and without any prior legal scrutiny and preconditions," said parliamentarians Stavros Lambrinidis and Francoise Castex in a letter demanding clarification of the facts.
Hadopi is the controversial French law requiring that ISPs disconnect customers from the Internet if they are found to have illegally downloaded copyright material. However, after many objections from ISPs and members of the French government, a judge must now decide whether an infringement actually took place.
The European Commission denied that there are any secret talks taking place on copyright enforcement. However, the Commission did reveal on Monday night that dialogue is ongoing between the key stakeholders on issues relating to copyright infringement.
Representatives from the Commission's Internal Market and Services Directorate General, which is the responsible directorate, said that the aim is to find solutions to problems within the existing legal framework and not to make decisions or deals behind closed doors.
"The dialogue takes place between the stakeholders with DG Markt providing logistic and secretarial support and, as a neutral body, chairing the meetings. In order to keep the discussion manageable, the number of participants has to be kept limited. No stakeholder is excluded as such," said spokeswoman Chantal Hughes.
The Commission has also launched a public consultation on the IPR Enforcement Directive to run until March 31.
Meanwhile in Ireland, a so-called three-strikes rule has been adopted by the country's largest ISP, Eircom, following a lawsuit filed against it by the music industry. A similar case against a smaller provider, UPC, failed when the Irish High Court ruled that cutting off Internet users who have illegally downloaded content could not be enforced and "could be in breach of European legislation."
In the U.K., the country's two largest service providers, BT and Talk Talk, won a judicial review of the Digital Economy Act challenging the legality of its obliging them to cut off customers and block sites proven to have been involved with illicit downloading or file sharing.
The European consumers' group BEUC was allegedly invited to the Commission's "secret talks" but refused the terms of attendance. "Further harmonization of intellectual property right enforcement legislation when the substantive copyright law is far from being harmonized and adapted to the digital environment is not only premature, but it also entails the risk of further fragmenting the internal market and shifting the balance to the detriment of consumers," BEUC warned the Commission last November.
