27 February 2011

Net Neutrality: It Is Getting Serious In Austria


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Do you remember my primer on net neutrality? In that very same I expressed my concern about the development in the United States and showed some optimism as to the “stable conditions” in Europe. Well, I might have been wrong. But let me first remind you

What is net neutrality about?

In a nutshell: net neutrality is the principle proposed for user access to the Internet, which would prevent Internet Service Providers (ISP) from acts of discrimination related to different kinds of Internet traffic that would result in restricting content, sites or platforms.
Having monitored the press releases this week, I
came across what sounded very much like a war cry against that principle. Somewhat suprisingly, it came from Austria.

What is the current menace?

In a very recent meeting in London, Mr Hannes Ametsreiter, CEO of the Telekom Austria Group, reportedly challenged the principle of  net neutrality, thereby using harsh, even menacing expressions. For those not necessarily familiar with the abovementioned company: Telekom Austria is the incumbent telco operator in Austria that still has a significant market power.

From what I read, he has considered to block the access to services such as Skype and Google Voice, provided they “cannibalize and eat up our revenues“. This sounds scary, does it not? And should Internet users just accept that threat or can they rely on some shelter? Let us have a look at the regulatory front.

What does the regulation say?

You will not find a specific language on net neutrality in the regulations currently in force. The Access Directive from 2002 spends some words on “adequate access, interconnection and interoperability of services” in its Article 5. In the light of the older legislation, however, this represents an instruction related to interconnection rather than to net neutrality. The latter did simply not represent an issue in 2002.

But things have changed with the issuance of the revised Telecoms Package in 2009. The updated version of the Access Directive contains not only European Commission’s declaration on net neutrality, it even mandates the Member States to “promote the ability of end-users to access and distribute information or run applications and services of their choice“. The Member States are under the obligation to transpose that directive by 25 May 2011.
Things look now brighter, do they not? Nevertheless, we should take Mr Ametsreiter’s words very seriously.

My concluding thoughts

I have some understanding for Mr Ametsreiter’s concern. Incumbents such as Telekom Austria are under the obligation to provide for a universal service. In the last decade however, they have gradually been bleeding market share and revenue in the realm of voice services. A good chunk of the customers they have lost went to Skype and Google Voice, since those have a nearly free of charge Voice over IP offerings. Incumbents claim that they remain sitting on the cost of their infrastructure, while Skype and the like absorb the profits. Without such infrastructure, incumbents as well as other ISP assert, there would not be Skype or content providers at all. But would there be any interest in ISP if there were not content providers?
Reminds me of who came first, the chicken or the egg.

The optimists among use might say: the market competition will solve it all.
I do not think so.
It is simple – if an incumbent makes a first step, others will follow and the market will fail. And this is the reason why we have regulation – to remedy such failures, irrespective of whether Mr Ametsreiter likes it or not.

 

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3 February 2010

ACTA – a much ado about nothing or a real menace to our digital freedom?


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2propuestas para el #TwitterShowcase 24 #ACTA #openACTAphoto © 2010 Neto González  | more info (via: Wylio)

In the last couple of weeks I have been confronted with numerous and contradictory information on the Anti-Counterfeiting Trade Agreement (ACTA), its ongoing negotiation rounds, and – of course – its possible impacts on our digitised society.

Curiously enough, the information flow appears to be largely one-sided, as it originates from critics of the planned agreement at the utmost. Official European authorities’ statements are either rare or more or less expressionless. The Intellectual Property Watch has quoted the Commissioner Designate for International Trade, Karel de Gucht, saying “If there is confidentiality, I will respect it and I have to respect it.  It is impossible to change the terms during the negotiations”. Clearly, confidentiality obligations – when assumed – need be abode by. However, why should an issue of such importance be kept under secrecy?

ACTA is meant to be a multilateral trade agreement whose framers claim it to be a response “to the increase in global trade of counterfeit goods and pirated copyright protected works.”

The Scope of ACTA is Broad

including counterfeit physical goods, as well as “internet distribution and information technology”. In regards to the latter, ACTA is feared by many to bring the so called “three strikes and you are out” rule that would eventually lead to an internet denial for, say, users of infringing file sharing platforms. Such rules, for instance, are currently reported to be either implemented or seriously discussed in France, the United Kingdom, New Zealand, South Korea, and Taiwan.

ACTA is further frequently pulled together with the Directive 2004/48/EC (IPRED). Allegedly, the European Institutions await ACTA’s coming into force in order to align it with the IPRED II that was proposed in 2005 and aims to introduce criminal measures to ensure the enforcement of intellectual property rights.

Put it another way and given the validity of the above, ACTA will provide for

Some Atrocious Amendments

of the intellectual property legislations around the globe.

Indeed, I acknowledge that we live in an intellectual property driven society. Peterson J’s dictum “what is worth copying is worth protecting” in the University of London Press vs University Tutorial Press case seems to be as relevant today as it was in 1916.  And yes, it is true that the advent of Internet brought an inexpensive way to copy digital works and to distribute them without suffering any loss in quality. It is thus understandable that authors and right owners sought and are still going to seek sufficient protection for their works. Legislation on intellectual property, however, has always sought to

Provide for a Societal Balance

i.e. a balance between right owners’ limited monopoly over their works and society’s interest to access these works. The changes considered to be introduced by ACTA will, in my humble opinion, cause an imbalance in favour of the right owners.

As a consequence, ACTA is to be viewed – at least on the realm of Internet –  as a

Menace to Our Digital Freedom

rather than as much ado about nothing. If I were asked to advise the content industry, I would emphasize on business models and licensing schemes somewhat different than the current ones instead of employing a “seek and destroy” strategy to fight digital infringement.
There are many voices out there presenting good ideas, the content industry should just listen up.