Myself, Coding, Ranting, and Madness

EU e-Commerce Directive — Background

The e-Commerce Directive was adopted to the European Union in 2000, and covered some very useful ground in terms of definitions in order to form a unified internal market for electronic commerce. It does rather show its age in terms of internet politics, as it essentially looks at the trading and contract regulations. One of the things it does not do is deal with copyright infringement at any length: in fact, it only gets mentioned twice, firstly in the preamble to mention that having a unified policy on copyright throughout the union would be very helpful in implementing these laws, and then in the Annex to note that such infringement is not covered by article 3, removing the obligation to “ensure that the information society services provided by a service provider established on its territory comply with the national provisions [copyright law] applicable in the Member State in question”.

Amongst other things, it has what is probably the best legal definition of a ‘mere conduit’, and also a well-formed, although negotiable, definition of non-liable caching1. Also Of interest is article 15: “No general obligation to monitor”[backref name="ecd2000" />

1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.
2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.

This leads on to articles 18-20, most notably

Member States shall ensure that court actions available under national law concerning information society services' activities allow for the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved.

This was introduced in UK law ten years ago as “The Electronic Commerce (EC Directive) Regulations 2002”2, with all the major definitions appearing to be in tact3. Article 18(1), which I quoted in the paragraph above, was not implemented here, nor in any of the three other statutory implements referenced.

This actually leaves a seemingly irrelevant hole in terms of stopping illegal activity on the internet that is not related to copyright violations; online rogue traders would have to be dealt with in terms of the existing meat-space frameworks, it would seem4

However, this may be about to change a little bit. The directive is up for some form of review — a ‘communication’ to be precise — which appears to have surfaced from the commission late last year5. The focus is still commerce, but the landscape has changed with the ubiquitous presence of information-as-a-product. The proposal therefore makes reference to “a legislative initiative on private copying (2013)” and a review of the “Directive on copyright in the information society (2012)”6 which I must admit passed me by entirely.

In addition to this, there are two partially related consultations currently open, which I recommend you take a few minute to look at. At the lower-level end, there is the On-line public consultation on "specific aspects of transparency, traffic management and switching in an Open Internet"7. More relevant to my intentions here, however, is the "Public consultation on procedures for notifying and acting on illegal content hosted by online intermediaries"8.

A fuller overview of these has, unfortunately, been pushed back a couple of posts; partially due to some technical issues (which I will discuss in that post), and partially due to the large distraction caused by reading up on the original e-Commerce directive9. So...stay tuned?

1. 1 ↑ http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:EN:NOT
2. 2 ↑ http://www.legislation.gov.uk/uksi/2002/2013/made
3. 3 ↑ Because of the nature of the EU, a lot of leeway is given in these directives
4. 4 ↑ Finding any kind of conformation on this, one way or another, is difficult due to the slew of copyright related news and views.
5. 5 ↑ http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/12/5
6. 6 ↑ http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML
7. 7 ↑ http://ec.europa.eu/information_society/digital-agenda/actions/oit-consultation/index_en.htm
8. 8 ↑ http://ec.europa.eu/internal_market/consultations/2012/clean-and-open-internet_en.htm
9. 9 ↑ Which then led to this post...