Le Royaume-Uni vers une interdiction du téléchargement gratuit[en] 

Music sector lobbies and the wider online content production industry have lately triggered a range of initiatives in Europe to restrict piracy on the internet, which consists in downloading or exchanging songs, films and software without respecting copyright rules.

The toughest stance has been adopted by the French government, which recently brokered a deal between music and film producers on the one side and internet service providers on the other in an attempt to curb piracy. A memorandum of understanding was also signed last November with the aim of setting up a new authority "with powers to suspend or cut access to the web for those who illegally file-share". The provision is expected to become law in France by next year.

At EU-level, the European Commission adopted at the beginning of 2008 a policy paper on 'Creative content online' citing the French model as an example for enforcing bans on illegal downloading (EurActiv 10/12/07).

Virgin, BT, Tiscali, BSkyB, Carphone Warehouse and Orange have all signed up to the non-legally binding agreement with the online content industry, committing themselves to discouraging the free download of music or films covered by copyright.

The deal was brokered by the UK government and foresees that letters will be sent to users caught illegally downloading or uploading content online. In other words, anyone who shares files on peer-to-peer websites - not only those who are getting free material, but also those who distribute it - is likely to receive a warning letter at home about this illegal activity. 

Enforcement unsure

Hundreds of thousands of letters are expected. However, the deal does not as yet commit to concrete actions to punish serial offenders, saying such measures still have to be analysed. Therefore, unlike what is expected in France, enforcement in the UK will not be guaranteed. 

Indeed, the French draft law, which still awaits the Parliament's green light, establishes a three-step approach in which the last step would be to block persistent offenders' internet connection. 

In the UK, the only restrictive measure foreseen for the moment is the reduction of the speed of the illegal downloader's connection. The government has nevertheless launched a public consultation on the issue.

The UK move  triggered different reactions in both the country and in Europe. Small British Isps are not happy with the deal signed by their bigger colleagues and are unwilling to make similar commitments, complaining that oversight activities are costly and should be carried out by public security authorities. 

Apart from in France, a wait-and-see approach appears to prevail in other European countries prevails, notably because it is not clear how restrictive measures could be applied without affecting existing rules on privacy and communications.

What role for the EU?

The European Commission supports a "fair balance", but it is increasingly aware of the risks related to illegal downloading for the European content industry. A new EU recommendation on 'Content online' is expected in the autumn. Indeed, France currently holds the rotating EU Presidency and is keen to increase copyright protection across Europe. 

Several MEPs have also argued in favour of tough anti-piracy measures, although they unsuccesfully tried to include new provisions in the general Telecoms Review, currently under debate in the European Parliament (EurActiv 20/02/08).

On its side, the European Court of Justice ruled in January that internet providers cannot be obliged to release customers' personal data during civil legal claims raised by copyright owners (EurActiv 30/01/08). 

The British Internet service providers' association (ISPA UK) welcomed the deal but, in a statement , it underlined that "the current signatories to the memorandum of understanding are larger ISPs and would urge Government and Ofcom (the British telecoms regulator) to ensure that further discussions on the proposals are conducted in full consultation with all providers."  

The German ISPA however strongly opposed the deal. Its president, Michael Rotert, told EurActiv: "We are completely against it. ISPs are not deputies of the police," he said, underlining that currently technology is not developed enough to detect infringements. "There is the risk that the wrong IP address would be damaged," he further cautioned.

EuroISPA, which brings together European national ISPAs, declined to comment due to widely diverging opinions among its membership. But, in a recent policy paper , it said to be "concerned by recent national initiatives aiming at requiring internet access providers to assume a quasi-judicial role in limiting the online activities of their users".

The European Commission's spokesperson on Information Society  told EurActiv: "The Commission has always been promoting in its policies a fair balance between the need for protection intellectual property rights and developing an open and trustworthy information society. A Commission recommendation on Content Online, which will seek to spell out EU-wide recommendations in further detail, is currently in preparation in Commissioner Reding’s services and could be published in autumn."

When launching the communication on Creative content online in January, Information Society Commissioner Viviane Reding said : "We have to make a choice in Europe: Do we want to have a strong music, film and games industry? Then we should give industry legal certainty, content creators a fair remuneration and consumers broad access to a rich diversity of content online."