Music industry anti-caching letter

20 April 1999 European Parliament Committee on Legal Affairs and Citizens Rights VIA EMAIL Re: Proposal for a European Parliament and Council Directive on Certain Legal Aspects of Electronic Commerce in the Internal Market Dear Member, The International Confederation of Music Publishers, which has contacted you in the past on issues concerning its members, would now appreciate the opportunity to facilitate and contribute to your decision-making process during the Committee on Legal Affairs and Citizens Rights’ discussion of the Proposal for a Directive on Certain Legal Aspects of Electronic Commerce in the Internal Market. At present, there are certain points that have yet to be resolved, especially as regards provider liability, caching and hosting, issues upon which ICMP/CIEM has consistently stressed the need for strong protections and clear definitions. Article 12. ICMP/CIEM is particularly concerned about the misconception that access providers are “mere conduits” of information. In reality, access providers can and do monitor the passage of information through networks, and are always more than “mere conduits”. To remove any liability from these operators is to risk creating a preferred piracy zone in which a few unscrupulous operators, known for ignoring the passage of infringed works through their networks, will attract pirates. While the Commission text only requires action on the part of a provider under a prohibitory injunction, we believe that a provider should be liable for take down and removal if it has any reason to know of illicit activity. This is similar to the standard we suggest for Article 14. Article 13. As regards caching, it should be remembered that this process is much more than a “transient or incidental” copy which is an “integral and essential” part of “a technological process for the sole purpose of enabling use to be made of a work”, which is the exception to copyright found in the Parliament’s approved Amendment to Article 5.1 of the Proposal for a Directive on copyright and related rights in the Information Society. The caching process should therefore be subject to a license which allows this use of the work. Moreover, copyrighted works must not be included in the exception granted in the Electronic Commerce Directive; if they are, what you have achieved in the Copyright Directive will be put at risk. Article 14. The subject of “hosting” also poses specific concerns. We cannot agree with the “actual knowledge” standard used in this Article. ICMP/CIEM instead supports a change in the text to impute liability when the provider has any “reason to know” of illegal activity. ICMP/CIEM does, however, fully support Paragraph 2 of the Commission text. In light of our concerns, we ask you to please support the Amendments we have indicated as favourable in the attached annex. We would also ask you to express your support for our members, the European composers and musical creators, by voting against unfavourable Amendments, also indicated in the attached annex. We would also like to indicate our support for Article 22.2, which excludes from the application of Article 3 copyright and neighbouring rights which are referred to in Directives 87/54/EEC and 96/9/EC. Thank you again for your continued support and willingness to consider our opinion on this Directive. We cannot overemphasise the fact that the future of musical creation in Europe depends a great deal on the support that we hope to find in your committee. I am at your immediate disposition should you wish to contact me at my office prior to, or after, your vote to discuss our position. Very best regards, Jenny Vacher-Desvernais