EDRi-gram newsletter - Number 8.24, 15 December 2010

[EDRI-gram newsletter]

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         EDRi-gram

biweekly newsletter about digital civil rights in Europe

  Number 8.24, 15 December 2010


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Contents
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Bonus EDRi-gram
1. Rule of law in the hands of private companies.Wikileaks is just the start
2. Data Retention Directive evaluation: expect the unexpected?
3. Commission finds solution on notice and takedown and it seeks the problem
4. ECJ to discuss the case of eBay & trademark infringement
5. Council text on web blocking - breaking the law to fight crime
6. French law Loppsi 2 under debate again
7. Privacy Platform Meeting
8. Sweden's high court sends IP-data protection conflict to the ECJ
9. ENDitorial: WIPO SCCR 21 session
10. Recommended Action
11. Recommended Reading
12. Agenda
13. About

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Bonus EDRi-gram
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This is the last regular issue of EDRi-gram for 2010. For the good boys and
girls a special BONUS EDRi-gram will be sent just a few days before
Christmas. :-)

The next regular issue of EDRi-gram, number 9.1, will be published on 12
January 2011.

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1. Rule of law in the hands of private companies.Wikileaks is just the start
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Private-sector attempts to undermine and attack the ability of WikiLeaks to
function on the Internet have attracted much attention.  Their domain name
(wikileaks.org) was was taken out of service by EveryDNS, their ability to
collect funds was restricted by Paypal, Visa and Mastercard while Amazon
deleted their website. When did we abandon the rule of law and replace it
with summary justice meted out by private companies? How does it happen that
private companies can punish a website that has never been convicted of a
crime? Why would they do this?

The truth is that there have been years of "behind-the-scenes" efforts by
(mostly western) governments to persuade, reward or coerce Internet
companies into developing censorship structures. Under the harmless-sounding
flag of "self-regulation," and demands that Internet providers take more
responsibility for illegal online activity, a comprehensive infrastructure
is being put in place. The purpose of this infrastructure is to hand over
quasi-judicial responsibilities to private companies, which, less bound by
the obligations imposed on courts, impose summary justice on those accused
of illegal activity online. This action can be to have payments being
blocked by payment providers, websites deleted and Internet traffic filtered
by Internet providers,  slowly and imperceptibly eroding the rule of law.
While western governments must respect their constitutions, life becomes
much simpler when private companies can take extra-judicial action against
uncomfortable online information.

Even before WikiLeaks had been heard of by anyone in Europe except geeks,
the European Commission had launched proposals for European web hosting
companies to take extra-judicial action to delete websites without judicial
authority (helpfully suggesting that they give themselves licence to do so
in their terms of service), online trading platforms to ban people accused
of counterfeiting from online trade, Internet access providers to filter
peer to peer traffic in order to delete anything that might not be
authorised by copyright owners and mobile phone companies to block alleged
illegal content from their networks.

This is not just a European phenomenon. The EU negotiated the
Anti-Counterfeiting Trade Agreement with countries around the world. This
agreement suggests extra-judicial "cooperation" between Internet providers
and copyright owners to police and punish alleged infringements. The
Organisation for Economic Cooperation and Development has launched a major
project on the role of Internet intermediaries in "achieving public policy
objectives". The Organisation for Security and Cooperation in Europe
actively welcomes an approach where the only punishment for the publication
of racist material online is the extra-judicial deletion of the websites
containing the material. The list goes on.

Unfortunately, this trend for governments to outsource regulation of the
Internet is happening at a moment when Internet companies are increasingly
open to such requests. Companies like Virgin and Deutsche Telekom/T-Mobile
are campaigning for the right to interfere in Internet traffic for their own
commercial purposes. Virgin has announced plans to implement technology to
open every packet of data sent to or received from its consumers in order to
police possible copyright infringements, which would undermine its music
business. Deutsche Telekom has also signaled its intention to restrict
access of its customers to high-bandwidth sites. Earlier this year, its CEO
reportedly demanded that Google be required to pay for the bandwidth used to
access its services.

The increasing willingness of the largest Internet providers to interfere
with their customers' traffic for business purposes obviously creates
dangers for competition, innovation and free speech - dangers that would
normally inspire government intervention for the good of society. Instead
there appears to be a silent agreement - Internet companies will gradually
undertake extra policing activities and, in return, they will be left free
to slowly dismantle the openness that is at the heart of its value for
democratic society.

Deutsche Telekom moves against Apple, Google and net neutrality  (7.04.2010)
http://www.dw-world.de/dw/article/0,,5439525,00.html

Virgin Media to trial filesharing monitoring system (26.11.2010)
http://www.theregister.co.uk/2009/11/26/virgin_media_detica

EDRi-gram: E-Commerce directive: ensure freedom of expression and due
process of law (17.11.2010)
http://www.edri.org/edrigram/number8.22/edri-e-commerce-directive-consultation

EDRi-gram: EDRi and EuroISPA attack EC's demands for notice and takedown
(28.07.2010)
http://www.edri.org/edrigram/number8.15/edri-euroispa-notice-takedown-comission

(Contribution by Joe McNamee - EDRi)

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2. Data Retention Directive evaluation: expect the unexpected?
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The evaluation of the controversial Data Retention Directive takes an
unexpected turn, for the worse. At a crucial one-day conference in Brussels
on 3 December 2010, aimed at gathering input for the evaluation, long-term
critic of the Directive Commissioner Malmstrvm (DG Home Affairs)
surprisingly announced that "data retention is here to stay".

The statement not only disregards legal developments since 2005, the
damage done by telecommunications data retention to 500 million
Europeans and the lack of evidence that such a measure is necessary and
proportionate. On top of that, the Commissioner undermines the entire
evaluation process and the evidence-based decision making itself. To great
risk, because our fundamental freedoms and the very nature of our free
and open societies is at stake.

Nevertheless, the unexpected statements of the Commissioner could turn out
to be momentary. Each member of the Commission swore, for the first time in
history, a legally binding oath before the European Court of Justice to
respect the Fundamental Rights Charter on 3 May of this year. In 2011, the
same European Court of Justice will rule on the constitutionality of the
principle of data retention, after a referral of this question by the Irish
High Court. The Commission might realize in time that it will lose its
credibility, once the Court - taking note of the ECJ Schecke ('86) and ECtHR
Marper ('119-125) judgements - rules data retention in breach of our
fundamental rights to privacy. Better stand up for the rights of 500 million
citizens now, than feeling sorry afterwards.

"We shouldn't put the privacy of all citizens at risk", Commissioner Reding
(Justice, Fundamental Rights and Citizenship) told Dutch newspaper NRC
Handelsblad recently. So the Commission is divided on this controversial
issue. In the evaluation report, to be published in the first quarter of
2011, the entire Commission will have its say. Is data retention here to
stay? We might as well expect the unexpected.

Entire report of the conference "Taking on the Data Retention Directive"
(8.12.2010)
https://www.bof.nl/2010/12/08/data-retention-directive-evaluation-expect-the-unexpected/

EDRi's keynote lecture  at the conference "What does the European
Commission owe 500 million Europeans?" (3.12.2010)
http://www.edri.org/files/Data_Retention_Conference_031210final.pdf

Cecilia Malmstrvm Member of the European Commission responsible for Home
Affairs Taking on the Data Retention Directive European Commission
conference in Brussels (3.12.2010)
http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/10/723

(Contribution by Axel Arnbak - EDRi-member Bits of Freedom - Netherlands)

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3. Commission finds solution on notice and takedown and it seeks the problem
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On 15 December 2009, the European Commission held its third meeting on
"public  private cooperation to counter the dissemination of illegal content
in the European Union. The first meeting took place in November 2009 and the
second in May 2010.

After the previous meeting, the European Commission received written
comments jointly from EDRi and EuroISPA as well as a variety of industry
players. Six months later, the Commission finally reacted to that feedback,
sending participants revised recommendations on the evening before the
meeting.

The Commission tried to open discussions on its recommendations for
extra-judicial takedown of material that has been accused of being illegal,
on grounds of containing child abuse, racism/xenophobia or terrorist
content. However, both industry and EDRi demanded repeatedly that the
Commission finally should define the problems that it believes it is
addressing by this initiative. Unfortunately, the Commission steadfastly
refused to do this. The Commission also choose not to answer a direct
question as to how this initiative complies with either Article 10 of the
European Convention on Human Rights (which requires a legal basis for
interferences with communication) and the 2003 Interinstitutional Agreement,
which obliges the Commission not to promote co- or self-regulatory measures
in relation to matters of significance to fundamental rights.

In the afternoon session, DG Information Society of the European Commission
explicitly stated that some Member States do not devote adequate resources
to addressing online child abuse and that it is "at the bottom of the
(priority) list" in some European countries. As a result, the Commission is
focusing on takedown of the criminal websites and is developing statistical
tools to assess the speed with which sites are deleted.

Contradicting repeated statements about the "need" to block websites in the
USA, Russia and Ukraine, the Commission explained that significant progress
was being made in those countries. This may not necessarily be such good
news - exporting a system where criminals are "punished" by having their
websites deleted rather than facing a judicial procedure in full respect of
the rule of law does little to respect the EU's obligation to support
democracy and the rule of law internationally.

The Commission then invited an anti-spam initiative in order to allegedly
demonstrate how Internet intermediaries can regulate the online environment.

The meeting closed with industry stressing the lack of clarity about where
the process was meant to go, the relevance of the "recommendations"
published by the Commission and the fact that lack of resources in law
enforcement agencies cannot be solved by industry actions.

The Commission may or may not provide more guidance on whatever problem that
this process is supposed to solve, but asks for industry input on this.
Comments are requested by the end of January, with a working group meeting
planned for February and another "plenary" meeting in April.

Draft Recommendations
http://www.edri.org/files/draft_recommendations.pdf

EDRi-gram: Joint EDRi/EuroISPA response to previous round of consultations
(28.07.2010)
http://www.edri.org/edrigram/number8.15/edri-euroispa-notice-takedown-comission

(Contribution by Joe McNamee - EDRi)

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4. ECJ to discuss the case of eBay & trademark infringement
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In the case introduced by L'Oreal against auction site eBay and referred by
the High Court of Justice (England and Wales) to the European Court of
Justice (ECJ) the Advocate General, Niilo Jaaskinen, published on 9
December 2010 its opinion that the site could not be considered liable for
trademark infringement committed by its users in case it was not expressly
notified regarding such infringements.

However, in case electronic marketplaces, such as eBay, do not take measures
to stop a trademark infringement when notified of it, they will no longer be
except from liability:
"Regarding the same user and the same trade mark an operator of an
electronic marketplace has actual knowledge in a case where the same
activity continues in the form of subsequent listings and can also be
required to disable access to the information the user uploads in the
future. In other words, exemption from liability does not apply in cases
where the electronic marketplace operator has been notified of infringing
use of a trade mark, and the same user continues or repeats the same
infringement," says the Advocate General.

In 2007, L'Orial notified eBay of its concerns about the sale of its goods
on eBay's European websites and, dissatisfied with the site's answer,
brought a legal action against eBay in Belgium, Britain, France, Germany and
Spain. L'Oreal claimed eBay was equally liable, together with its users, for
potential brand infringements which included eBay users selling L'Orial
perfumes and cosmetics samples meant for free distribution, removing package
boxes from perfumes and cosmetics before selling them via eBay or selling
their products intended for markets outside of Europe. eBay argued the were
just hosting the auctions and therefore not directly liable, according to
the EU E-commerce directive.

In an earlier case this year dealing with the conflict between trademark
infringement and contextual adevertising brought by a group of luxury goods
companies in March 2010, the ECJ ruled that Google could continue selling
advertisements linked to searches for brand names. Similarly, the Advocate
General now believes eBay can continue to purchase keywords-based
advertising in order to direct users of Internet search engines to its site
(including L'Orial trademarks) stating that "the use of the disputed
trademarks as keywords by eBay does not necessarily result in misleading the
consumers as to the origin of the goods offered." Yet, he also expressed
himself in favour of L'Orial, stating the company can prohibit the selling
of goods with the outer packaging removed if this is damaging for the
company's reputation or the function or quality of its products. Also, trade
mark protection can be invoked where goods for sale on eBay haven't been put
on the market within the EU.

It seems both eBay and L'Oreal have received Jaaskinen's opinion positively:
"Despite the complexity of the issues and the preliminary nature of the
advocate general's opinion, we are encouraged that the ECJ's final judgment
will reinforce European consumers' freedom to buy and sell authentic goods
online," stated Steve Milton, Director of Corporate Communications at eBay
International.

L'Orial believes that the opinion is a balanced one and "is overall
consistent with the stance that L'Orial has held for several years," and
that it also supports "effective combating of internet-based counterfeit
product sales."

The Advocate general's opinion is not binding for the ECJ but, in most of
the cases the Court follows his recommendations. Usually,
the ECJ rules between three and six months after the advocate general's
opinion.

Also, in the US, the Supreme Court refused to hear an appeal in a similar
case, thus supporting the ruling made by the Appeal Court on 1 April 2010 in
the case brought by jeweller Tiffany against eBay in 2004 and consequently
making the ruling definitive. The Court of Appeal's decision was that eBay
did not infringe trademarks when allowing counterfeit sales in its auction
sales. The court considered that eBay had fulfilled its duty by removing
certain items when so asked by Tiffany, and that its obligations went no
further than that. However, the Court of Appeal asked the lower court in the
case to rule on whether eBay adverts for Tiffany goods were infringing false
advertising regulations.

Opinion of Advocate Genral Jaaskinen in L'Oreal vs eBay case C 324/09
(9.12.2010)
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-324/09

ECJ could increase online sellers' liability for trade mark infringements
(9.12.2010)
http://www.out-law.com//default.aspx?page=11655

US ruling relieving eBay of trade mark liability over fakes will stand
(1.12.2010)
http://www.out-law.com//default.aspx?page=11631

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5. Council text on web blocking - breaking the law to fight crime
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The Council of Justice Ministers adopted a text on web blocking at its
recent meeting in Brussels on 2-3 December 2010. The Belgian Presidency, for
domestic reasons, felt obliged to adopt a text during its term of office. As
a result, the outcome is a hastily cobbled together text that makes little
legal sense and whose main value is to finally betray the real meaning
behind the proposal.

The adopted text can be divided into two main parts:

1. "Member States shall take the necessary measures, including through
non-legislative measures, to ensure that the blocking of access to webpages
containing or disseminating child pornography is possible towards the
Internet users in their territory."

Under the UN Child Rights Convention, Member States are already under a
binding legal obligation to take all appropriate measures to prevent the
"exploitative use of children in pornographic performances and materials".
If Member States do not feel that blocking is "necessary" to achieve this,
the Council's wording would not create an obligation for them to suddenly
make a different analysis that would make blocking obligatory.

However, the text is very clear about the obligation to create an
infrastructure which is capable of implementing the blocking of web pages
(Member States shall (...) ensure that the blocking of access to webpages
(...) is possible (...) in their territory.)

The reference to "non-legislative" measures is particularly interesting
because blocking via "self-regulatory" mechanisms by Internet providers is
unquestionably illegal. It is illegal under:

a. The European Convention on Human Rights - Article 10 "The exercise of
these freedoms (...) may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law"
b. The European Commission's own impact assessment - "Such measures must
indeed be subject to law, or they are illegal."
c. The International Covenant on Civil and Political Rights. Article 19.3
"The exercise of the rights provided for in paragraph 2 of this article
carries with it special duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only be such as are
provided by law and are necessary."
d. The 2003 Interinstitutional Agreement on Better Lawmaking - Article 17:
"The Commission will ensure that any use of co-regulation or self-regulation
is always consistent with Community law (...) These mechanisms will not be
applicable where fundamental rights or important political options are at
stake or in situations where the rules must be applied in a uniform fashion
in all Member States."

2. The second element of the agreement is also noteworthy. It requires that
the individuals accused of uploading depictions of serious crimes against
children are informed that their site is blocked and "as far as possible,
are informed of the possibility of challenging it." Such an obligation would
only be necessary if it is assumed that there would be no investigation or
prosecution of the individuals that uploaded the site. In Belgium, this is
done by providing a fax number on the blocking page that will not be
available to the person who, by definition, will be not be in Belgium and
therefore not able to see the page.

Council text (26.11.2010)
http://www.statewatch.org/news/2010/nov/eu-council-sexual-exploitation-16958-10.pdf

Interinstitutional agreement on better law making (31.12.2003)
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2003:321:0001:0001:EN:PDF

Impact assessment - Accompanying document to the Proposal for a Council
Framework Decision on combating the sexual abuse, sexual exploitation of
children and child pornography, repealing Framework Decision 2004/68/JHA
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52009SC0355:EN:NOT

Convention on the Rights of the Child (20.11.1989)
http://www2.ohchr.org/english/law/crc.htm

European Convention on Human Rights
http://www.hri.org/docs/ECHR50.html

(Contribution by Joe McNamee - EDRi)

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6. French law Loppsi 2 under debate again
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The so-called Loppsi 2 draft law (loi d'orientation et de programmation pour
la performance de la sicuriti intirieure - law on guidelines and programming
for the performance of internal security) is being discussed these days in
the French General Assembly in second reading, after having been approved by
the Senate in September 2010.

The National Assembly is continuing the long and controversial debate on the
draft text which might allow the blocking, at the level of ISPs, of websites
considered by the authorities as undesirable, without judiciary control and
which may give the police authority to install spyware on PCs, without the
users' knowledge and without having to justify their actions.

Article 4 of the text referring to the blocking of child pornography sites
is considered as a Trojan horse. The concerns are that the filtering may be
extended to other types of sites out of political reasons as it happened
with FNAEG (Fichier National Automatisi des Empreintes Ginitiques -
Automated National File of Genetic Prints) which started initially by
gathering the DNA data of sexual criminals and ended up in containing the
DNAs of more than 1,5 million people.

Many organizations (even child protection ones) have expressed several times
the idea that, while supporting the fight against child pornography sites,
they also believed that the measures proposed by the French government were
disproportionate and most of all inefficient.

La Quadrature du Net has brought as example the attempts to forbid the
hosting of Wikileaks in France. "This shocking maneuver is a new
demonstration of the government's will to by-pass the legal authority in
order to play the Internet police in contempt of the fundamental rights. The
child protection pretext is only a means for the political power to
establish a filtering infrastructure for the information on the net" stated
the organization.

The organisations belonging to CLEJ (Collectif Liberti Egaliti Justice -
Collective for Freedom, Equality and Justice), warn over the fact that the
draft text "reveals a political line that is particularly worrying:
databases, surveillance, control, detention!"
The group is worried by the increased surveillance and believes that "in
France the goal is to increase the spying of public space to the maximum:
the authorities will be able to place video-surveillance devices practically
everywhere in public spaces."

After going through the National Assembly, the text will go back to the
Senate at the beginning of 2011. According to Girard Larcher, President of
French Senate the debate next year will be difficult and "fierce".

LOPPSI 2: not in our name ! Statement by CLEJ which is open for signatures
(only in French, 2.12.2010)
http://clej.blog.free.fr/index.php?post/2010/LOPPSI-2-pas-en-notre-nom

Loppsi 2, custody, Immigration: Larcher predicted "difficulties" in the
Senate (only in French, 9.12.2010)
http://www.google.com/hostednews/afp/article/ALeqM5hCLMdWXRYQzs0gMGCkTeCcY3w3nQ?docId=CNG.4f248d6e99e453a5310760a81af36c0b.321

LOPPSI examan delayed, probably towards late December (only in French,
23.11.2010)
http://www.numerama.com/magazine/17417-l-examen-de-la-loppsi-repousse-probablement-a-fin-decembre.html

Wikileaks, possible target of Loppsi ? (only in French, 9.12.2010)
http://www.numerama.com/magazine/17568-wikileaks-cible-potentielle-de-la-loppsi.html

EDRi-gram: Blocking websites approved by the French Senate (22.09.2010)
http://www.edri.org/edrigram/number8.18/french-law-loppsi-2-senate

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7. Privacy Platform Meeting
============================================================

On 1 December 2010, the Privacy Platform held a meeting on the Commission's
recent Communication on updating the Data Protection Directive. Hosted by
Sophie in't Veld MEP, the panel consisted of: Martin Selmayr, Head of
Commissioner Reding's cabinet (who spoke in her absence as the Commissioner
was ill), Jacob Kohnstamm, Chairman of the Article 29 WP, and Peter Hustinx,
the European Data Protection Supervisor.

The meeting was well attended and overall, it followed standard storyline.
In regard to the Communication and future steps for the revised Data
Protection Directive, Mr. Kohnstamm urged that more ambition was needed, and
listed five general principles that should be kept in mind. First that class
action is a necessity, the patchwork of data protection rules should be a
thing of the past (particularly in the post-Lisbon EU), the duty of
controllers should be strengthened, privacy by design should be addressed
more thoroughly and that there should be better enforcement powers for data
protection authorities (DPA).

Peter Hustinx, echoing many statements in support of the Article 29 WP
Chairman, emphasized the need to take a bold approach, particularly in terms
of enforcement, accountability, harmonisation and including privacy by
design into the beginning of the development process rather than tackling it
at the end. This approach is outlined in more detail in his recently
published policy paper which outlines a more robust approach to data
protection.

The issue of real consent was discussed throughout the meeting, where Marc
Rotenberg from the Electronic Privacy Information Center (EPIC), commented
that "consent" is often anti-privacy, as its terms are dictated by the firm
in question. Mr. Hustinx agreed, saying that transparency does not equal
consent. Sophie in't Veld made the point that consent implies choice, but in
reality, "choice" does not really exist.

In regard to public authorities taking more responsibility and
accountability, Ms. In't Veld pointed to the irony that they are usually the
greatest violators of privacy, illustrating another dilemma with regards to
attaining adequate data protection in the information society.

There was discussion of sanctions and better enforcement measures for the
Data Protection Directive and for DPAs. Mr. Kohnstamm agreed that more
sanctions are needed, but that the measures also need to expand power and
scope in order to logistically take on the added load (adding that currently
there are only 80 employees in his DPA).

The public consultation on the Communication is open until 15 January 2011.
The Commission plans to release the final review of the Data Protection
Directive sometime "around" the summer of 2011.

Videoclips from the Privacy Platform meeting:
Sophie In't Veld:
http://www.youtube.com/watch?v=zoRTAK4-rD4
Peter Hustinx, EDPS
http://www.youtube.com/watch?v=pjeUl0LJhMc

Commission Communication on "a comprehensive strategy on data protection in
the European Union"
http://www.statewatch.org/news/2010/oct/eu-com-draft-communication-data-protection.pdf

EDPS Policy Paper on Monitoring and Ensuring Compliance with Regulation (EC)
45/2001 (13.12.2010)
http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/EDPS/Publications/Papers/PolicyP/10-12-13_PP_Compliance_EN.pdf

(contribution by Raegan MacDonald - EDRi)

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8. Sweden's high court sends IP-data protection conflict to the ECJ
============================================================

The Swedish ISP TeliaSonera has recently received a decision at the Swedish
Supreme Court that questions a 2009 court decision forcing it to hand over
the identity of SweTorrents BitTorrent site operator.

In 2009, four movie studios represented by anti-piracy group Antipiratbyran
took TeliaSonera to Svdertvrn District Court which forced the ISP to reveal
the identity of the respective file-sharer.

The anti-piracy group as well as the court considered that, based on
Sweden's IPRED (Intellectual Property Rights Enforcement Directive)
legislation, ISPs had the obligation to reveal to rightholders the identity
of customers involved in copyright infringement cases. The provider refused
to comply arguing that ISPs had the fundamental right to protect their
customers' privacy and pointing out the conflicts between IPRED and the
European Data Protection Directive.

TeliaSonera appealed, but in May 2010, the Court of Appeal upheld the
District Court's decision, ruling that the ISP would face a fine amounting
to about 80 000 euro in case of non-compliance. TeliaSonera appealed again
taking the case to the Supreme Court which has now ruled to postpone the
decision and send the case to the European Court of Justice (ECJ) in
Luxembourg in order to clarfy the conflict between data protection and IP
enforcement provisions.

"It is good that the Supreme Court shares our view that there must be a
balance between the interests in matters of principle and that court has now
therefore decided that TeliaSonera's case should await the ECJ ruling, "said
Patrick Hiselius, TeliaSonera's lawyer.

This means that a final decision in the matter might take a few years. And,
as there is nothing in the Swedish Electronic Communications Law that
obliges ISPs to store information about the IP addresses of their customers,
Telia, as well as the other ISPs, will be free to stop storing data or
delete data in order to protect the privacy of their customers. At least
until the data retention directive is implemented in Sweden.

ISPs Free To Continue Deleting Evidence Against File-Sharers (7.12.2010)
http://torrentfreak.com/isps-free-to-continue-deleting-evidence-against-file-sharers-101207/

Supreme Court decision on IPRED  (only in Swedish, updated 6.12.2010)
http://www.dn.se/nyheter/sverige/gogsta-domstolen-pausar-ipredmal-1.1222232

EDRi-gram: The new Swedish anti-piracy law stirs things for file sharers
(16.12.2009)
http://www.edri.org/edrigram/number7.24/sweden-tests-ipred

============================================================
9. ENDitorial: WIPO SCCR 21 session
============================================================

The present text is a report from the Standing Committee on Copyright and
Related Rights 21st meeting in Geneva, Switzerland (SCCR 21).
In this report, the debate on the Broadcasting Organizations' protection
(except for the NGO statements) is not included due to the fact that the
author was not present during these negotiations.

The discussions on the matter started during the afternoon of the second day
of the meeting. A handy comparison chart of the four previously introduced
proposals from 2009 and 2010 was available, from which it was fairly easy to
catch up with the current discussion. Brazil, Ecuador and Paraguay (later
joined by Mexico - thus the BEMP Treaty proposal) and the African Group made
fairly similar proposals, based on a World Blind Union recommendation
for the visually impaired (various terminologies were used in various
documents, e.g. blind and other reading disabilities or persons with print
and other reading disabilities - for the purpose of this document, they mean
the same). In their proposals, other disabled people were also mentioned,
unlike the US or EU proposals, which were in this and other respects much
more restrictive in the exceptions proposed. The exceptions for other
disabled were, in the final document, moved to a different meeting, together
with the limitations and exceptions for educational and research
institutions, libraries and archives.

During the meeting, KEI made a statement supporting the BEMP Treaty
proposal for extending the exceptions to include other disabled in need than
only visually impaired, which I signed on EDRi's behalf.

Most of the discussion in the meeting, from Wednesday on, revolved around
the issue of limitations and exceptions for the visually impaired.
Unfortunately, that left little time for the multitude of other topics that
should have been handled. This was recognized, and thus, what the meeting
actually ended up in doing on the topics left unhandled was to divide them
up between additional working days and the coming SCCR meetings in the
following manner:

May/June 2011, SCCR 22: three additional working days for limitations and
exceptions for persons with print and other reading disabilities, to be
presented to the WIPO General Assembly (GA) during September 2011, where a
decision is to be taken on the topic.

November 2011, SCCR 23: three additional working days for limitations and
exceptions for libraries and archives. This was an especially hot topic
amongst the NGOs, as it originally seemed that educational and research
institutions would have been handled before libraries and archives and all
were predicting that to be a much tougher negotiation, possibly having
repercussions on the negotiations for libraries and archives.

It seems that the limitations and exceptions for archives is going to be a
lot easier topic to handle than for libraries. There is little point in
limiting the usage of archive material, especially (but not only)
in the case of orphan works, by the archives. It is, after all, fairly
unlikely that these would be profitable usages nor that they would be
"misused", in the sense of the current copyright law or its related rights.
The question for libraries is arguably tougher, although, access to
information through libraries should be a clear goal to educate the people.

May/June 2012, SCCR 24: again, three additional working days to the regular
session, now for the limitations and exceptions for education, teaching and
research institutions, and, rather surprisingly, persons with other
disabilities (than print or reading impaired).

There seemed to be no representatives for education, teaching and research
NGOs and institutions at the meeting. Maybe they were there, but the NGOs
representing visually impaired, libraries, archives and general purpose NGOs
such as EDRi, EFF and KEI (although, no FSF, even though they had a seat -
unfortunate), and of course the associations representing copyright holders
and 'casters were at least much more visible.

Both SCCR 23 and SCCR 24 results are to be presented in the following WIPO
GA meeting in September 2012.

Basically, the exceptions for various disabled are not going to switch the
field of copyright much to any direction - nor will the exceptions to
archives. And these exceptions are easily justifiable by the mere access to
information argument - access to extremely limited amount of information
compared to non-disabled, in any case.

The exceptions for libraries, schools, higher education and research, on the
other hand, might be more meaningful from a copyright perspective. But in a
good sense, as in getting access to information for those who, at
the moment, are lacking it, especially for education but also for cultural
purposes (as is of course true for disabled as well!).

As it seems to be becoming more and more common, the meeting stretched until
(and past) midnight on the last evening. The final version of the timetable
for further negotiations was accepted 7 minutes to midnight - after midnight
it would have been too late, and it would have gone to SCCR 22. After that,
the paper was still discussed, thanks were given etc., but basically, the
result of SCCR 21 was achieved at that point.

Standing Committee on Copyright and Related Rights : Twenty-First Session
(8-12.11.2010)
http://www.wipo.int/meetings/en/details.jsp?meeting_id=20208

Standing Committee on Copyright and Related Rights : Twentieth Session
(21-24.06.2010)
http://www.wipo.int/meetings/en/details.jsp?meeting_id=17458

Standing Committee on Copyright and Related Rights : Eighteenth Session
(25-29.05.2009)
http://www.wipo.int/meetings/en/details.jsp?meeting_id=20200

Communication to SCCR delegates regarding the beneficiaries of a new WIPO
treaty for copyright exceptions for disabilities (12.11.2010)
http://keionline.org/node/1018

(Contribution by Kai K. Kimppa - EDRi-member Electronic Frontier Foundation
Finland)

============================================================
10. Recommended Action
============================================================

Join EFF in Standing up Against Internet Censorship (12.2010)
https://www.eff.org/deeplinks/2010/12/join-eff-in-standing-up-against-internet-censorship

============================================================
11. Recommended Reading
============================================================

Data protection compliance in the EU administration:
EDPS adopts comprehensive policy on supervision and enforcement (13.12.2010)
http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/EDPS/Publications/Papers/PolicyP/10-12-13_PP_Compliance_EN.pdf

The Downside of Data Sharing (10.12.2010)
http://www.nytimes.com/roomfordebate/2010/12/09/what-has-wikileaks-started/data-security-in-the-age-of-wikileaks

Video Oxcars 2010
http://oxcars10.la-ex.net/en/

============================================================
12. Agenda
============================================================

15-16 December 2010, Brussels, Belgium.
"Lift-off Towards Open Government"
http://www.opengov2010.be/

27-30 December 2010, Berlin, Germany
27th Chaos Communication Congress (27C3)
http://events.ccc.de/congress/2010

25-28 January 2011, Brussels, Belgium
The annual Conference Computers, Privacy & Data Protection CPDP 2011
European Data Protection: In Good Health?
http://www.cpdpconferences.org/

26 January 2011, Brussels, Belgium
Cultural Diversity and Europe 2020: Nuisance or necessity?
http://conferences.euobserver.com/cultural/index/

23-28 February 2011, Gosier, Guadeloupe, France
ICDS 2011- 5th International Conference on Digital Society
http://www.iaria.org/conferences2011/ICDS11.html

24-25 February 2011, Berlin, Germany
The First OAPEN Conference
http://meetings.copernicus.org/oapen2011/

11-12 March 2011, Ankara, Turkey
ICEGEG-2011- 3rd International Conference on E-Government and E-Governance
http://www.icegeg.com/index.html

28 March 2011, Paris, France
5th European eAccessbility Forum: Benefits and costs of e-accessibility
http://inova.snv.jussieu.fr/evenements/colloques/colloques/70_index_en.html

1 April 2011, Bielefeld, Germany
Big Brother Awards Germany
Nominations open until 31 Dec 2010
http://www.bigbrotherawards.de/index_html-en

12-15 June 2011, Bled, Slovenia
24th Bled eConference, eFuture: Creating Solutions for the Individual,
Organisations and Society
http://www.bledconference.org/index.php/eConference/2011

============================================================
13. About
============================================================

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