miércoles, 10 de febrero de 2016

After #NetNeutrality , it is time for updating the #MereConduit principle

One of the principles that inspires online services regulation is the "mere conduit" principle. This principle is enshrined in the EU legal framework in the E-Commerce Directive. Since the approval of this piece of regulation in the year 2000, network operators have no legal liability for the consequences of traffic delivered via their networks and hosting providers are not liable of the storage of an illegal content as long as they do not have knowledge of its illegality. The "mere conduit" principle has an implication the non-liability of any kind of intermediary in the piracy value chain.

The modernisation of the copyright rules was among the 16 measures announced by the European Commission in the Digital Single Market Strategy. One of the elements of this modernisation effort was "clarifying the rules on the activities of intermediaries in relation to copyright-protected content". The European Commission has taken an step-by-step approach in updating the EU copyright regime. According with the recently published roadmap, the proposal for the clarification of the intermediaries role will not be on the table until (at least) mid 2016. Following the better regulation principles, a public consultation will be open until April 2016.

We can expect an increase of the lobbying activities regarding copyright in the first half of 2016. This activities started even before the publication of the Digital Single Market Strategy. In march 2016, digital rights advocates and civil society groups gathered together in Manila and approved the Intermediary Liability Principles (Manila Principles). The first of this principles is that "Intermediaries should be shielded from liability for third-party content". Although not formal support of any GAFA has been formalised yet, we can imagine they are sympathetic with this effort. The reverse could be said of copyright management organisations.

Once again, sadly, it looks that this effort will not be agile enough. The European Court of Justice has on the table a case where they have to analyse the liability of WiFi providers in a case of illegal content downloading. The decision on the case is expected to be taken before the publication of the EC proposal. It is alarming how the digital economy legal framework is increasingly defined by the courts instead of the legislative power.

Whatever the final result of the reinterpretation of the "mere conduit" principle in the future updated regulation, we can expect changes. This has recently happened also with other foundations of the digital economy as the net neutrality principle. The updating of this basic rules that has framed the development of the Internet services and contributed to growth of global economy should not be feared. It is the sign of the new reality of the XXI century: We do not live in a world with some digital islands any more, software has eaten the physical world.

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