============================================================
EDRi-gram
biweekly newsletter about digital civil rights in Europe
Number 6.24, 17 December 2008
============================================================
Contents
============================================================
1. ECHR decided against the UK DNA Database
2. Wikipedia filtered by UK ISPs for cover album picture
3. ECHR rules on identifying serious privacy infringers
4. Romanian Authority asks ISPs to block 40 pornographic websites
5. Bulgarian Court annuls a vague article of the data retention law
6. Snooping law, "Lex Nokia", proceeding slowly but surely in Finland
7. German Federal Archives provides Wikipedia with 100 000 images
8. UK Government now in favour of the extension of the copyright term
9. Spanish collective society fined for making clandestine wedding video
10. ENDitorial: First FRA Conference on Fundamental Rights
11. Recommended Reading
12. Agenda
13. About
============================================================
1. ECHR decided against the UK DNA Database
============================================================
On 4 December 2008, the European Court of Human Rights (ECHR) gave its
judgement in the Marper case related to the controversial National DNA
Database used by the UK Police for criminal investigations, stating the
retention of cellular samples, fingerprints and DNA profiles constitutes an
infringement of the right for private life as per Article 8 of the European
Convention on Human Rights.
The case was brought to court in 2004 by Michael Marper and a boy called "S"
who, in separate, unrelated cases, had been taken their DNA after having
been arrested. The charges were dropped in both cases but the UK police
refused to destroy the DNA samples of the two individuals on the basis of
the British law which allowed the retention of DNA and fingerprints.
ECHR based its decision on Article 8 of the European Convention on Human
Rights and decided that the indefinite retention by the UK Government and
Police of innocent people's DNA and fingerprints was illegal. "In
conclusion, the Court finds that the blanket and indiscriminate nature of
the powers of retention of the fingerprints, cellular samples and DNA
profiles of persons suspected but not convicted of offences, as
applied in the case of the present applicants, fails to strike a fair
balance between the competing public and private interests and that the
respondent State has overstepped any acceptable margin of appreciation in
this regard. Accordingly, the retention at issue constitutes
disproportionate interference with the applicants' right to respect for
private life and cannot be regarded as necessary in a democratic society."
The court dismissed all arguments brought by the UK Government, stating that
"England, Wales and Northern Ireland appear to be the only jurisdictions
within the Council of Europe to allow the indefinite retention of
fingerprint and DNA material of any person of any age suspected of any
recordable offence". One of the main concerns expressed by the court was
"the risk of stigmatisation, stemming from the fact that persons in the
position of the applicants, who have not been convicted of any offence and
are entitled to the presumption of innocence, are treated in the same way as
convicted persons," the ruling adding that especially the retention of
children's data following acquittal could be harmful, "given their special
situation and the importance of their development and integration in
society."
Following this decision, the UK Government is expected to change its present
legislation which allows the police to retain samples of people who are not
convicted.
According to reports, there are about 4.5 million samples presently stored
in UK DNA database, out of which more than 850 000 are from people
with no criminal record. The creation of a DNA database has been questioned
by many people. The Information Commissioners Office made a statement
last year on this issue warning on the dangers of such a database: "There
are significant risks associated with creating a universal database: it
would be highly intrusive, and the more information collected about us, the
greater the risk of false matches and other mistakes. The potential for
technical and human error leading to serious consequences cannot be under
estimated."
Shadow Home Secretary Dominic Grieve also warned on the dangers brought by
the fact that the database can be checked by EU member countries against
sensitive personal information. "There is a real risk that a
disproportionate number of innocent British citizens will be sucked into
foreign criminal investigations."
The House of Lords has passed an amendment to the Counter Terrorism Bill,
proposed on 4 November by Baroness Hanham that would force the Government
to show to people how they can have their samples removed from the database.
"This amendment would require the Secretary of State to draft and lay before
Parliament regulations governing the procedures by which people can discover
what information is held about them and under what circumstances a request
can be made by them to have samples taken during an investigation by the
police destroyed," said Baroness Hanham.
One possible approach of the UK Government, which would be accepted by ECHR,
could be that of Scotland police. According to the Scottish Criminal
Procedure Act, an individual's DNA samples and resulting profile must be
destroyed if the individual is not convicted or is granted an absolute
discharge. Biological samples and profiles may, however, be retained for
three years in case the respective person is suspected of certain sexual or
violent offences even if not convicted.
European Court of Human Rights - Grand Chamber Judgement - Case of S. and
Marper v. The United Kingdom (4.12.2008)
http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=843941&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
Innocent Britons 'may be branded criminals abroad' after Big Brother
databases agreement (15.12.2008)
http://www.telegraph.co.uk/news/worldnews/europe/3761189/Innocent-Britons-ma...
S. and Michael Marper v. The United Kingdom (DNA Retention) (28.05.2008)
http://whereismydata.wordpress.com/2008/05/28/s-and-michael-marper-v-the-uni...
DNA retention policy breaches human rights, rules ECHR (4.12.2008)
http://www.out-law.com/page-9639
Lords demand amendment to help the innocent get DNA off database (6.11.2008)
http://www.out-law.com/page-9564
EDRi-gram: UK DNA database errors raise concerns (5.07.2007)
http://www.edri.org/edrigram/number5.23/uk-dna-database-error
============================================================
2. Wikipedia filtered by UK ISPs for cover album picture
============================================================
Wikipedia administrators found on 5 December 2008 that six British ISPs were
filtering the access to their site, after Internet Watch Foundation (IWF)
had put the online encyclopedia on a child-pornography blacklist for its
article on Virgin Killer, the record album of the German band the Scorpions.
The action was taken following a report occurred on 4 December through IWF's
online reporting mechanism on the article which presents the album and its
original cover depicting a naked prepubescent girl. The cover was banned in
many countries and replaced by another cover when the album was issued in
1976.
IWF stated that "As with all potentially illegal online child sexual abuse
reports we receive, the image was assessed according to current UK
legislation and in accordance with the UK Sentencing Guidelines Council
(page 109). The content was considered to be a potentially illegal indecent
image of a child under the age of 18, hosted outside the UK. As such, in
accordance with IWF procedures, the specific webpage was added to the IWF
list. This list is provided to ISPs and other companies in the online sector
to help protect their customers from inadvertent exposure to potentially
illegal indecent images of children."
David Gerard, unofficial spokesman for Wikipedia UK, argued that
ISPs were blocking not only the image but the associated text of the
article. "Part of the problem lies in the fact that the IWF have not just
blocked the offending image, but have blocked the accompanying text as well.
We cannot be certain, but we suspect that had they stuck to their remit of
focussing on pictures, the problem might not have arisen."
In some cases, UK users could not edit Wikipedia pages, in others it seems
they could not view it at all. Moreover, because the six ISPs are routing
Wikipedia traffic through transparent proxies, an enormous amount of what
would appear to be Wikipedia editors seem to come from the same IP range. A
single IP may identify all Virgin Media users, which means that if Wikipedia
admins decided to ban one Virgin Media customer for inappropriate edits,
they might ban all Virgin Media customers. One of the messages received by
UK users read: "Wikipedia has been added to an Internet Watch Foundation UK
website blacklist, and your Internet service provider has decided to block
part of your access. Unfortunately, this also makes it impossible for us to
differentiate between different users, and block those abusing the site
without blocking other innocent people as well."
Although legally correct in classifying the cover album image as illegal in
UK under the Sexual Offences Act 2003, as the image does not link to sites
with similar material and is not hosted on such a site, IWF, which compiles
its blacklist manually, could have applied the Notice and Take-down
procedure in order not to disrupt other legitimate uses of Wikimedia. On
the other hand, Wikipedia's editors, although not contacted or notified by
IWF or the ISPs, have considered the issue of taking the image down but
decided against it, considering this measure a form of censorship.
On 9 December, IWF Board announced that after considering the context of the
case and the fact that the image had existed for some time already and it
was also widely available, it had decided to remove this webpage from its
blacklist. Moreover: "Any further reported instances of this image which are
hosted abroad, will not be added to the list. Any further reported instances
of this image which are hosted in the UK will be assessed in line with IWF
procedures."
The blacklist has also had results outside UK. In Finland, Teliasonera, a
large ISP, also censored the Wikipedia article. The reason given out was a
configuration error causing the ISP to use the IWF censorship list in
addition to the police provided list.
Richard Clayton from EDRi-member FIPR-UK looked in depth on the technical
aspects of the censoring of Wikipedia to underline the fact that the IWF
chose to filter text pages on Wikipedia rather than just the images they
were concerned or that different capitalisations of URLs, the different
blocking technologies, and the different implementation timescales led to
considerable confusion as to who blocked what and when.
"Some of these matters could be described as "human error" and might be done
better in any re-run of these events with any of the other questionable
images hosted on Wikipedia (and many other mainstream sites). However, most
of the differences in the effectiveness of the attempted censorship stem
directly from diverse blocking system designs - and we can expect to see
them recur in future incidents. The bottom line is that these blocking
systems are fragile, easy to evade (even unintentionally), and little more
than a fig leaf to save the IWF's blushes in being so ineffective at getting
child abuse image websites removed in a timely manner" concludes Richard.
Brit ISPs censor Wikipedia over 'child porn' album cover (7.12.2008)
http://www.theregister.co.uk/2008/12/07/brit_isps_censor_wikipedia/
IWF statement regarding Wikipedia webpage (9.12.2008)
http://iwf.org.uk/media/news.251.htm
UK ISPS lock out Wikipedia in filtering error (7.12.2008)
http://www.iptegrity.com/index.php?option=com_content&task=view&id=219&Itemid=9
Finnish internet censorship expanding: Wikipedia article censored
(7.12.2008)
http://blog.fealdia.org/2008/12/07/finnish-internet-censorship-expanding-wik...
Technical aspects of the censoring of Wikipedia (11.12.2008)
http://www.lightbluetouchpaper.org/2008/12/11/technical-aspects-of-the-censo...
============================================================
3. ECHR rules on identifying serious privacy infringers
============================================================
On 2 December 2008, the European Court of Human Rights (ECHR) gave its
judgement on the case K.U. v. Finland, considering that Article 8 of the
Convention asks for national laws that will protect people from serious
privacy infringements on the Internet, but at the same time demands a legal
framwork that permits the identification and prosecution of offenders,
respecting digital rights.
In this case brought to the ECHR an unknown person or persons placed an
advertisement on a dating site on the Internet in the name of the applicant,
who was 12 years old at the time, without his knowledge. The advertisement
mentioned his age and year of birth, gave a detailed description of his
physical characteristics, a link to the web page he had at the time which
showed his picture, as well as his telephone number, which was accurate save
for one digit. In the advertisement, it was claimed that he was looking for
an intimate relationship with a boy of his age or older "to show him the
way". The applicant became aware of the announcement on the Internet when
he received an e-mail from a man, offering to meet him and "then to see what
you want".
The applicant's father requested the police to identify the person who had
placed the advertisement in order to bring that person to court. The service
provider, however, refused to reveal the identity of the holder of the IP
address in question, considering itself bound by the confidentiality of
telecommunications as defined by law. The Finnish courts could not help the
father, considering that the law in force at that time provided for this
information to be revealed only in respect of the criminal offences.
Therefore the applicant asked the ECHR to judge if the fake ad did not
consitute a violation of his right to a private life under Art. 8 of the
ECHR and if he had not been denied an effective remedy for that violation
under Art. 13 ECHR.
The court held that Finland was in breach of its obligations under Article
8, because it didn't provide an effective criminal sanction for the
violation of the applicant's rights. Consequently the court did not continue
to consider the issue under Article 13.
The court considers that serious privacy infringements need to be considered
by the legal framework of the states: "While the choice of the means to
secure compliance with Article 8 in the sphere of protection against acts of
individuals is, in principle, within the State's margin of appreciation,
effective deterrence against grave acts, where fundamental values and
essential aspects of private life are at stake, requires efficient
criminal-law provisions ."
ECHR concludes by explaining that Article 8 should be interpreted in order
to provide the legal framework to identify wrongdoers and bring them to
justice, respecting the human rights on the Internet (freedom of expression
and confidentiality of communications):
"The Court considers that practical and effective protection of the
applicant required that effective steps be taken to identify and prosecute
the perpetrator, that is, the person who placed the advertisement. In the
instant case such protection was not afforded. An effective investigation
could never be launched because of an overriding requirement of
confidentiality. Although freedom of expression and confidentiality of
communications are primary considerations and users of telecommunications
and Internet services must have a guarantee that their own privacy and
freedom of expression will be respected, such guarantee cannot be absolute
and must yield on occasion to other legitimate imperatives, such as the
prevention of disorder or crime or the protection of the rights and freedoms
of others. "
TJ McIntyre from EDRi-member Digital Rights Ireland is commenting on the
text that raises a number of questions on the practical implications of the
case:
"The court points out that it is dealing with a "grave" criminal offence,
which leaves open the question of whether the reasoning would apply to less
serious offences or to civil matters only. It also limits itself to
requiring a national balancing framework between the rights of an alleged
victim and the general rights of privacy in communications and freedom of
expression - presumably within that framework states will enjoy a
significant margin of appreciation. On the other hand, it rejects the
argument that other systems (such as notice and takedown or intermediary
liability) can suffice, insisting instead on requiring identification of
users. It also focuses on the "ability of the victim to obtain financial
reparation", which seems to extend the reasoning to civil matters also."
Judgement Case of K.U. v. FINLAND (2.12.2008)
http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=843777&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
Identifying Individuals in Internet Iniquity: ECHR rules on naming
wrongdoers (2.12.2008)
http://www.tjmcintyre.com/2008/12/identifying-individuals-in-internet.html
K.U. v. Finland: No Data Retention Obligation (15.12.2008)
http://www.jorisvanhoboken.nl/?p=236
============================================================
4. Romanian Authority asks ISPs to block 40 pornographic websites
============================================================
The Romanian Authority for Communication (ANC) requested ISPs last week to
block the access to 40 websites hosted in Romania, considering they don't
meet the criteria imposed by article 7 of Law no.196/2003 on preventing and
fighting pornography.
Article 7 of the law states that "the natural and legal persons creating
pornographic sites are obliged to password them, and the access to these
will be allowed only after paying a fee per using minute, established by the
creator of the site and declared at the fiscal bodies."
However, five years later after the law was adopted, no specific fee is
foreseen in any normative act.
According to the ANC press release, its investigation revealed that "these
websites, hosted in Romania, did not observe the legal requirements on
access granted by a password (in most cases, even the minimum warning on the
age of persons allowed to access them was absent) and did not request the
payment of a fee per minute of use."
ANC President Liviu Nistoran declared that the list would not be made
public, "to avoid encouraging their accessing in the following period;
however, we will ensure that the access to such websites is blocked."
Internet providers are obliged to block users' access to the respective
websites within 48 hours. Failure to block users' access is punishable by
fines applied by the Police ranging from 10 000 to 50 000 RON (approx.
2500 - 12500 Euro).
As revealed by online newspaper Hotnews, the list was copied from a
complaint submitted by a phisical person on 28 November that contained 46
websites. Until 2008 only nine complaints were received on this law and just
one website was blocked for a short period in 2005 (newspaper Atac).
A scanned version list sent to the ISPs became available online at the end
of last week on several blogs. The list contained a well-known User
Generated video-sharing website (220.ro) , another domain name was just a
redirect to a .com website and a lot of websites hosted on some free hosting
accounts based in Romania.
The owners of some blocked websites complained about the decision and stated
that they would take ANC to court since they were not informed by the
Authority about any problems related to their websites which comply to the
law. Since the blockage was made on the IP addresses, some websites just
changed their IP in order to become available again. It is also unclear how
a website could get off the list, since ANC claims there is no such
procedure in place.
But the blocking system caused other legal websites to be blocked as well,
with no official information on why this was happening. It is clear that
only part of the over 1000 ISPs in the country implemented the measure
requested by ANC, according the various reports from users from all over the
country.
The measure to block access to websites via the ISPs was characterised by
EDRi-member APTI Romania and other national civil liberties groups and ISP
associations as a very dangerous measure and a direct attack to the freedom
of expression. They have asked in a public letter to ANC the immediate
revocation of the list, as an illegal and useless measure.
The civil society representatives explained to ANC there was a possibility,
under the e-commerce law, to ask the owners of the respective
web pages to comply with the law requirements by giving them an appropriate
period of time to do so or even to fine them directly, without appealing to
the ISPs for a illusory measure. They concluded that the present measure is
just a censorship act, without providing any benefits to the a Safer
Internet for children.
ANC Demands Blocking the Access to 40 Pornographic Websites (11.12.2008)
http://www.anrcti.ro/desktopdefault.aspx?tabid=3483
Telecom Referee asks blocking 40 pornographic websites. Only nine complaints
in the past 2 years (only in Romanian, 13.12.2008)
http://economie.hotnews.ro/stiri-telecom-5244280-update-arbitrul-telecom-cer...
220.ro on the ANC blacklist (only in Romanian, 13.12.2008)
http://legi-internet.ro/blogs/index.php?title=220_ro_pe_lista_neagra_a_anc_ului&more=1&c=1&tb=1&pb=1
Number of visitors for 220.ro in the past days
http://stat.trafic.ro/stat/220/vizitatori/zi/#stat
Public letter to ANC - Blocking 40 websites for your safety ?! (17.12.2008)
http://www.apti.ro/webfm_send/37
Law on fighting and combatting pornography 196/2003
http://www.legi-internet.ro/index.php?id=89&L=2
============================================================
5. Bulgarian Court annuls a vague article of the data retention law
============================================================
On 11 December 2008, the Bulgarian Supreme Administrative Court (SAC)
annulled article 5 of the national legislation that implements the Data
retention Directive, following a lawsuit initiated by Access to Information
Program(AIP).
Article 5 of the Bulgarian Regulation # 40 that was issued by the State
Agency on Information Technologies and Communication and the Ministry of
Interior provided for a "passive access through a computer terminal" by the
Ministry of Interior, as well as access without court permission by security
services and other law enforcement bodies, to all retained data by Internet
and mobile communication providers.
A five-member panel of the SAC annulled the article, considering that the
provision did not set any limitations with regard to the data access by a
computer terminal and did not provide for any guarantees for the protection
of the right to privacy stipulated by Art. 32, Para. 1 of the Bulgarian
Constitution. No mechanism was established for the respect of the
constitutionally granted right of protection against unlawful interference
in one's private or family affairs and against encroachments on one's
honour, dignity and reputation.
The court also found that the text of Art. 5 of the Regulation
providing that the investigative bodies, prosecutor's office and the court
shall be granted access to retained data "for the needs of the criminal
process," the security services - "for the needs of the national security",
does not provide limits against violations of constitutionally granted
rights of the citizens. Reference to specialized laws - such as Penal
Procedure Code, Special Surveillance Means Act, Personal Data Protection
Act, which specify conditions under which access to personal data shall be
granted, was not provided either.
Furthermore, according to the court, Art. 5 of the Regulation contradicts
the provision of Art. 8 of the European Convention on Human Rights.
The court emphasises that national legal norms shall comply with the
established principle and shall introduce comprehensible and well formulated
grounds for both access to the personal data of citizens and the procedures
for their retention. Article 5 of the Regulation lacks clarity in terms of
protection of the right to private and family life which contradicts the
provision of Art. 8 of the ECHR, the texts of the Directive 2006/24/EC, and
Art. 32 and 34 of the Bulgarian Constitution.
The decision or this court comes after an initial rejection of the demand by
a first court panel on 17 July 2008. This is final and can't be appealled to
higher competent courts of justice.
The Bulgarian Supreme Administrative Court (SAC) repealed a provision of the
Data Retention in the Internet Regulation (11.12.2008)
http://www.aip-bg.org/documents/data_retention_campaign_11122008eng.htm
Data Retention on the Internet - Legal Action by Access to Information
Programme in Bulgaria - 2008
http://www.aip-bg.org/documents/data_retention_campaign_eng.htm
Supreme Administrative Court issues a good decision for the Bulgarian
Internet (11.12.2008)
http://blog.veni.com/?p=990
(Thanks to Veni Markovski - EDRi-member ISOC Bulgaria)
============================================================
6. Snooping law, "Lex Nokia", proceeding slowly but surely in Finland
============================================================
Earlier this year, in April, the Government of Finland presented a bill
to the Parliament for an amendment to the Act on Data Protection of
Electronic Communications. Raison d'jtre for the bill officially is that
it would allow employers to investigate the log data of employees'
e-mails, if the company has reason to suspect that corporate secrets are
leaking out of the company or that the employer's communication networks
are being misused. The employer would not be allowed to read the content
of the messages themselves, however. The bill has been dubbed "Lex
Nokia" because it was sparked in 2006 by an announcement by prosecutor
Jukka Haavisto that Nokia had been illegally monitoring contact
information of its employees' e-mail in 2000 to 2001.
The public discussion about the proposed legislation has largely focused on
the official need for the law. However, the bill in itself does not
contain limitations restricting the snooping only to email logs, nor
only to employers. The law is vague, and can be interpreted to cover
nearly any IP-based telecommunication and in addition to companies, it
also covers some "corporate subscribers", for example universities.
In spite of legal expert statements that the government's proposal
violates the Finnish constitution, Constitutional Law Committee stated
that the bill is not unconstitutional and that it can be passed as a
regular law. Unlike many other countries, Finland does not have a
Constitutional Court, instead a parliamentary committee investigates .
The right to confidential communication is a fundamental right
guaranteed under the Finnish constitution, as well as by the European
treaty on human rights. The Chancellor of Justice and several law
professors have expressed concerns that Lex Nokia unnecessarily weakens
these fundamental rights, while giving corporations excessive leeway. In
effect, companies would have a higher authority to snoop on employees than
the police have, and they would be able to do so without obtaining a
warrant.
The measure was originally expected to come before the full Parliament
for a vote in mid-December, but it did not pass through the Transport
and Communications Committee as quickly as expected. The committee
proposed some minor changes to the law, and three dissenting minority
opinions were included in the statement. However, passage of the bill is
nearly certain, as the government parties have agreed on the matter.
The Constitution of Finland (31.07.1999)
http://www.finlex.fi/en/laki/kaannokset/1999/en19990731.pdf
"Lex Nokia" gets blessing from Constitutional Law Committee (14.11.2008)
http://www.hs.fi/english/article/%E2%80%9DLex+Nokia%E2%80%9D+gets+blessing+f...
Legal experts say "Lex Nokia" violates constitution (20.11.2008)
http://www.hs.fi/english/article/Legal+experts+say+%E2%80%9CLex+Nokia%E2%80%...
Chancellor of Justice criticises controversial proposal for "Lex Nokia"
(2.12.2008)
http://www.hs.fi/english/article/Chancellor+of+Justice+criticises+controvers...
(Contribution by Leena Romppainen - EDRi-member Electronic Frontier
Finland )
============================================================
7. German Federal Archives provides Wikipedia with 100 000 images
============================================================
The German Federal Archives has donated almost 100 000 images to the
Wikimedia Commons, as part of a cooperation between Wikimedia Germany and
the Federal Archive. These images are mostly related to the history of
Germany (including the Weimar Republic, the German colonial era, the Third
Reich and Germany after reunification).
All the images are licensed Creative Commons Attribution ShareAlike 3.0
Germany License (CC-BY-SA). Wikimedia Germany and the Federal Archive have
signed a cooperation agreement that, among other things, asserts that the
Federal Archive owns sufficient rights to be able to grant this kind of
license.
This is estimated to be the largest donation ever received by Wikimedia
Commons, that is today a database of over 3 million media files.
The other part of the cooperation is a tool for linking people from a list
compiled by the Federal Archive to the German Wikipedia Persondata and to
the person authority file of the German National Library (something German
Wikipedia has already been doing since 2005).
Angelika Menne-Haritz, vice-president of the Federal Archives in Berlin said
that the public had a right to access the photos and the deal with Wikipedia
would facilitate public access to the material.
Commons:Bundesarchiv (4.12.2008)
http://commons.wikimedia.org/wiki/Commons:Bundesarchiv
Interview: Cooperation between BundesArchive and Wikimedia (only in German,
4.12.2008)
http://netzpolitik.org/2008/interview-kooperation-von-bundesarchiv-und-wikim...
Wikipedia Receives German Pictorial History (6.12.2008)
http://www.dw-world.de/dw/article/0,,3851534,00.html
============================================================
8. UK Government now in favour of the extension of the copyright term
============================================================
At UK Music's Creators' Conference on 1 December 2008, Culture Minister Andy
Burnham announced the backing of the UK Government to extending the
copyright term for sound recordings to 70 years.
The decision goes against the recommendations of Andrew Gowers, whose 2006
review of copyright is in favour of keeping copyright at 50 years. It is
however more in line with the proposals made in February 2008 by EC Internal
Markets commissioner Charlie McCreevy to increase the term of protection to
95 years.
Presently, the revenues from a sound recording goes to the musicians who
performed on the recording and to the owners of the recording. Burnham
clearly supports the former and called on the music business to make sure
the measure benefits musicians and not the industry big companies. "We want
the industry to come back with good, workable ideas as to how a proposal on
copyright extension might be framed that directly and predominantly benefits
performers - both session and featured musicians," he declared.
The EC proposition adopted on 16 July 2008 introduces the extension of the
term not only for the performers but also for the producers. The proposal
has been largely opposed, many arguing that the copyright extension will be
detrimental to innovation and creativity and that other measures would be
more appropriate and efficient to support aging performers.
The extension of the copyright term was also discussed on 2-3 December 2008
in the Competitiveness Council that backed the Progress report adopted at
the end of November. The report states that the extension of the term to 95
years is considered by some Member States as too long, doubting the capacity
of the proposal to reach its objective in a satisfactory and balanced way.
However, some of these Member States might accept a more moderate extension.
As a response to concerns expressed by some of the Member States that the
measure might be discriminatory if only applied to the music sector, the
presidency of the Council proposed that the extended term should cover
audiovisual performers as well.
Concerning the right of session musicians to claim additional annual
remuneration and the performers' option to recuperate their rights in the
absence of exploitation by the phonogram producer, the presidency has
proposed that such rights might not be waived and the "use it or lose it"
clause for copyright - where the ownership of forgotten recordings reverts
to the performer - cannot be renounced by performers. Discussion on the
topic should continue.
As to the question of the harmonisation of the method of calculating the
term of protection of musical compositions with words, the Presidency
suggested the limitation of the scope to musical compositions and lyrics
specifically created to constitute a musical composition with words. The
question of the period of application is still to be settled.
The draft Directive is also considered within the European Parliament. The
non-leading Committee for Internal Market and Consumer Protection (IMCO)
adopted the Emmanouil Angelakas' (EPP-ED - Greece) draft opinion on 2
December 2008. Just a few amendments were adopted, among them the
application of the extended term of protection (95 years) not only to music
performers but also to audiovisual performers.
On 19 January 2009, the Legal Affairs Committee is expected to adopt its
report and the Parliament will vote on the proposal in plenary on 18
February 2009.
Government signals extension to copyright term (11.12.2008)
http://www.musicweek.com/story.asp?sectioncode=1&storycode=1036431&c=1
Music copyright extension - strings attached (12.12.2008)
http://www.theregister.co.uk/2008/12/12/burnham_mccreevy_sound_recording_ter...
The Council of Europe Presidency PROGRESS REPORT - Proposal for a Directive
of the European Parliament and of the Council Directive amending Directive
2006/116/EC of the European Parliament and of the Council on the term of
protection of copyright and related rights (26.11.2008)
http://register.consilium.europa.eu/pdf/en/08/st16/st16005.en08.pdf
Press release - 2910th meeting of the Council - Competitiveness (internal
market, industry and research) (1-2.12.2008)
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/intm/104497...
EDRigram - Extension of the copyright term for performers and record
producers (30.07.2008)
http://www.edri.org/edrigram/number6.15/extension-copyright-performers
============================================================
9. Spanish collective society fined for making clandestine wedding video
============================================================
The Spanish General Society of Authors and Editors (SGAE) has been fined for
having placed a private detective in a restaurant in Seville, in 2005, to
film a wedding in order to prove that the restaurant was using music for
which it had paid no royalties.
The court in Seville where the action was heard found that the video
presented by SGAE as proof against the restaurant was inadmissible because
it was "a clear violation of the constitutional rights to a person's own
image" and it was in breach of the privacy of the couple because it had been
taken clandestinely. The law requires the "unequivocal consent of the
affected person" in the treatment of his (her) personal data.
The society was given a 60 101 euro fine, imposed by the Spanish Data
Protection Agency.
The case has brought up the fact that using private detectives to
clandestinely check weddings in search of copyright infringements is a
common practice for SGAE. "Using private detectives to investigate fraud is
common. We will carry on doing it" said Pedro Farre, SGAE Director.
Concerning the fact that its detectives acted clandestinely he stated:
"There are times when in order to protect the legal good such type of proofs
are necessary".
The court also decided that the detective had breached the law of private
safety which forbids this type of professionals to use in their
investigations "technical means that may infringe the right to honour,
intimacy and the right to one's own image". Although SGAE argued that it did
not specify to the detective what means to use in his investigation and that
filming does not imply the generation of a personal data file, the court
decision considered the video as belonging to the personal data category.
According to the law, personal data is "all numerical, alphabetical,
graphic, photographic, acoustic or any other type of information susceptible
of being collected, processed or transmitted referring to an identified or
identifiable natural person" as was the case of the wedded couple.
The restaurant was however fined 43 179 euro for having used music without
paying copyright fees on the basis of other proofs.
Farri declared that the Society was going to consider whether to appeal the
decision.
Secret wedding video ruling is music to ears of privacy groups (15.12.2008)
http://www.timesonline.co.uk/tol/news/world/europe/article5342297.ece
SGAE will have to pay 60.101 for recording a wedding without
authorization(only in Spanish, 8.12.2008)
http://www.elmundo.es/elmundo/2008/12/08/cultura/1228709280.html
SGAE will have to pay a 60.000 euros fine for recording a wedding without
permission (only in Spanish, 7.12.2008)
http://www.elmundo.es/elmundo/2008/12/07/cultura/1228662714.html
============================================================
10. ENDitorial: First FRA Conference on Fundamental Rights
============================================================
On 8 and 9 December 2008, the EU Agency for Fundamental Rights (FRA) held
its first Fundamental Rights Conference in Paris. The event examined key
issues and challenges related to the freedom of expression. The conference
coincided with the 60th anniversary of the Universal Declaration of Human
Rights and was co-organised by the French Ministry of Justice.
In his welcoming speech, Jacques Barrot, the Vice-President of the European
Commission and Commissioner for Justice Freedom and Security, stressed out
the fact that pluralism was a condition sine qua non for freedom of
expression, but that there had to be limits in cases when the right to live
was affected. Hatred, racism and xenophobia cannot be accepted therefore, a
balance of competing rights has to be found. During his speech, Mr. Barrot
also announced that a Europol unit for tracking "dangerous websites" would
be set up in 2009.
Janez Lenarcic, the Director of the Office for Democratic Institutions and
Human Rights (ODIHR) of the OECD, pointed out the differences in the legal
systems of the OECD member states. What in some countries is considered to
be part of the freedom of expression in other countries it can be considered
to be a hate crime. Furthermore, in some countries ofthe OECD area, that he
described as Potjomkin democracies,there are Human Rights problems.
Also, the representatives of the Council of Europe, Margaret Killerby,
representing the Secretary General, and Ulrika Sundberg, representing the
Commissioner for Human rights, stated that anti-terror legislation had a
negative impact on the freedom of expression and that these measures on one
side and human rights on the other had to be carefully balanced. In the area
of the Council of Europe, journalists still face violence for practising
their right to freedom of expression. Also their right to receive
information anonymously from anyone is often challenged and has to be
ensured.
In her Keynote speech, the French journalist Florence Aubenas stressed the
fact that freedom of expression is not only challenged in distant countries
of the CoE and OECD but that this is as well an issue in France. In a recent
ranking of countries regarding freedom of expression that was published by
Reporters without Borders, France was only ranked 45. A clear sign that the
influence of the state over the media is present today in France.
During the rest of the conference, five working groups were established,
covering some important aspects of the freedom of expression.
The working group on challenges to freedom of expression very much focussed
on the challenges media and journalists face today. Problems with influences
from states and commerce were discussed as well as challenges emerging from
the discussion fora of online media and the increased publishing
possibilities for the average citizen on the Internet.
FRA Fundamental Rights Conference
http://fra.europa.eu/fra/index.php?fuseaction=content.dsp_cat_content&catid=3e6c61340870c&contentid=492d3cdb312db
(contribution by Andreas Krisch - EDRi)
============================================================
11. Recommended Reading
============================================================
A new ENISA report explains the risks of Web 2.0 - photo sharing, wikis,
social bookmarking and social networking - and "malware 2.0", a new breed of
web-borne infections you can catch just by visiting a web page and gives
advice to tackle them.
http://www.enisa.europa.eu/pages/02_01_press_2008_12_10_web2.html
============================================================
12. Agenda
============================================================
27-30 December 2008 Berlin, Germany
25C3: Nothing to hide
The 25th Chaos Communication Congress
http://events.ccc.de/congress/2008/
16-17 January 2009, Brussels, Belgium
Computers, Privacy & Data Protection conference
CPDP 2009: Data Protection in A Profiled World?
http://www.cpdpconferences.org/
28 January 2009, Europe-wide
3rd Data Protection Day
http://www.coe.int/t/e/legal_affairs/legal_co-operation/data_protection/Data...
7-8 February 2009, Brussels, Belgium
Free and Open source Software Developers' European Meeting (FOSDEM)
http://www.fosdem.org/2009/
18-20 March 2009, Athens, Greece
WebSci'09: Society On-Line
http://www.websci09.org/
27-29 March 2009, Manchaster, UK
Oekonux Conference: Free Software and Beyond The World of Peer Production
http://www.oekonux-conference.org/
29-31 March 2009, Edinburgh, UK
Governance Of New Technologies: The Transformation Of Medicine, Information
Technology And Intellectual Property" An International Interdisciplinary
Conference
http://www.law.ed.ac.uk/ahrc/conference09/
1-4 June 2009, Washington, DC, USA
Computers Freedom and Privacy 2009
Proposal Submissions by 9 January 2009
http://www.cfp2009.org/
2-3 July 2009, Padova, Italy
3rd FLOSS International Workshop on Free/Libre Open Source Software
Paper submission by 31 March 2009
http://www.decon.unipd.it/personale/curri/manenti/floss/floss09.html
13-16 August 2009, Vierhouten, The Netherlands
Hacking at Random
http://www.har2009.org/
23-27 August 2009, Milan, Italy
World Library and Information Congress: 75th IFLA General Conference and
Council: "Libraries create futures: Building on cultural heritage"
Call for papers by 15 January 2009
http://www.ifla.org/IV/ifla75/index.htm
10-12 September 2009, Potsdam, Germany
5th ECPR General Conference, Potsdam
Section: Protest Politics
Panel: The Contentious Politics of Intellectual Property
First proposals to be submitted by 1 February 2009
http://www.ecpr.org.uk/potsdam/default.asp
16-18 September 2009, Crete, Greece
World Summit on the Knowledge Society WSKS 2009
http://www.open-knowledge-society.org/
October 2009, Istanbul, Turkey
eChallenges 2009
Call for papers by 27 February 2009
http://www.echallenges.org/e2009/default.asp?page=c4p
============================================================
13. About
============================================================
EDRI-gram is a biweekly newsletter about digital civil rights in Europe.
Currently EDRI has 29 members based or with offices in 18 different
countries in Europe. European Digital Rights takes an active interest in
developments in the EU accession countries and wants to share knowledge and
awareness through the EDRI-grams.
All contributions, suggestions for content, corrections or agenda-tips are
most welcome. Errors are corrected as soon as possible and visibly on the
EDRI website.
Except where otherwise noted, this newsletter is licensed under the
Creative Commons Attribution 3.0 License. See the full text at
http://creativecommons.org/licenses/by/3.0/
Newsletter editor: Bogdan Manolea