WRITTEN QUESTION E-2414/02

by Michiel van Hulten (PSE) to the Commission

(7 August 2002)

Subject: Congressional bill to combat Internet file-sharing services (e.g. Kazaa)

According to a report in the 29 July 2002 edition of De Volkskrant the US Congress is preparing a law which would give the US recording and film industry the right to hack into the computers of consumers who exchange files illegally via the Internet. The industries would be given the right to disable the file-sharing software (e.g. Kazaa) and to block or otherwise disrupt users' Internet connections. The provisions of the law would apply to any breach of the rules which resulted in a loss of more than $ 50.

1. Is the Commission aware of this bill?

2. Is the Commission aware of the judgment handed down by the Netherlands courts stipulating that use of the file-sharing service Kazaa is lawful?

3. Does the Commission share the view that, even after the adoption of the new law, American firms will not have the right to disrupt European computer users' Internet traffic or even damage their computers and that any such act would represent a criminal offence?

4. What steps does the Commission plan to take in order to protect European computer users against the new law?

5. Does the Commission share the view that the enormous success of file-sharing services such as Kazaa (which already has some 100 million users according to its own website) can be explained by the exorbitant prices charged for audiovisual products, such as DVDs and CDs? What steps does it plan to take with a view to reducing prices for such products on the internal market?

Answer given by Mr Bolkestein on behalf of the Commission

(8 October 2002)

1. Regarding the preparation of legislation in the United States on the possibility for rightholders of intellectual property to prevent the unauthorised exploitation of protected material in the digital environment, the Commission is aware of a draft bill that has been introduced in the United States' House of Representatives on 25 July 2002 (HR5211). The purpose of this proposal is to limit the liability of copyright owners for protecting their works on peer-to-peer computer networks. According to this bill, a rightholder could not be liable in any criminal or civil action for disabling, interfering with, blocking, diverting, or otherwise impairing the unauthorised distribution, display, performance, or reproduction of his or her copyrighted work on a publicly accessible peer-to-peer file trading network (if such impairment does not alter the integrity of a computer file or data). To the knowledge of the Commission, this bill is liable to changes in the House of Representatives and has not yet been introduced in the United States' Senate.

2. The Commission does not possess detailed information on the Court decision issued in the Netherlands and mentioned by the Honourable Member (KAZAA decision). It is not in a position to comment on its content.

3. The Commission has no indication that the draft United States' bill, if adopted in its present form, would not only apply to American criminal or civil proceedings, or that it would give rightholders the possibility to interfere with the functioning of computers or to damage files or date stored in personal computers. In any case, all these acts are illegal in many Member States. Recently, the Commission proposed a Framework Decision on attacks against information systems(1). This proposal seeks to approximate definitions and criminal law provisions concerning, inter alia, denial of service attacks.

The Commission would also like to recall that the protection of technological measures used by rightholders for the protection of their intellectual property is provided at the international level by the World Intellectual Property Organisation (WIPO) Treaties of 1996 (the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty of 20 December 1996), as implemented at the European Community level by Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society(2). This Directive obliges Member States to provide adequate legal protection against the circumvention of any effective technological measures designed to control the use of protected subject-matter, especially in the on-line environment. It also highlights the crucial importance to safeguard a fair balance of rights and interests between the different categories of rightholders and users of protected subject matter in the form of specific provisions to this end.

4. The Commission will continue to follow the American legislative process, and assess its potential consequences. It will not fail to discuss any perceived problems with the American authorities, as appropriate.

5. The prices of audio and video products such as CDs or DVDs are determined by the market. The Commission's policies can only have an indirect impact on such prices, in particular through the application of competition or internal market rules. As a matter of general principle, an act considered to be an illegal acquisition of intellectual or tangible property cannot be justified by claiming that the price for the lawful acquisition is perceived as being to high.

(1) COM(2002) 173 final.

(2) OJ L 167, 22.6.2001.