A Global Initiative, Suspicious Methods

Remarks from Veni:

On March 16 the Bulgarian special forces for combatting organized crime, have ordered the major telecoms to filter the access to and from the web site www.arenabg.com. The request was based on the current law, but was followed only by three of the large ISPs, among them the Bulgarian Telecom. The others rejected it on the basis that it’s illegal. The police withdrew the ordinance the following Monday, as indeed a number of lawyers have said in the meantime that this ordinance should not be followed.
ISOC-Bulgaria was the only Bulgarian non-governmental organization to issue a statement on that topic, and members of the Board participated in making their position public.
Besides the filtering, the police has arrested the owner of the web site (the web site itself is located in the USA), but the court released him on the following day, as “the police did not submit any evidence the defendant has caused any copyright infringement”, as the media reported.
ISOC-Bulgaria has translated in English two articles of the internationally known and respected law professor Nelly Ognyanova on that subject, which can be read at the following addresses: https://blog.veni.com/?p=205 and https://blog.veni.com/?p=204

A Global Initative, Suspicious Methods
by Nelly Ognyanova*

There is much talk about torrents these days. Whoever knows what that is, knows what’s going on; whoever has no idea what a torrent is, doesn’t need to anyway. His or her kids probably have and that is enough for a household. Nevertheless, if one works for GDBOP, a judicial authority or is a member of parliament, the situation obliges one to be familiar with torrents, because they either make laws about them or enforce those laws.

Talking about torrents, we should speak about the rule of law – an important subject for everyone, not exclusively limited to Internet maniacs. In the case of torrents, GDBOP’s** campaign was undertaken against piracy and the fulfillment of the criteria Bulgaria faces. Truly this is important enough to be observed from different angles.

The Community’s Rights

The protection of the rights of intellectual property (IP) resides in the so called “horizontal questions” and numerous organizations and institutions deal with it. The different rights of the IP (copyright, neighboring rights and so forth) are regulated in directives, and there is a 2004 directive on IP enforcement, which insists on measures for an even more effective protection of the IP rights. The adoption of this directive was not easy. Although the initial draft of the Commission included a plan to harmonize the measures against piracy, the final version lacked harmonization of criminal measures. Bulgaria introduced this directive with amendments from the copyright legislation in 2005.

In 2006 a draft of a new directive was drawn up; once again its subject was harmonizing the criminal measures against piracy. The harmonizing of the penalties is not typical of the community legislation; it was possible only after the court posted a decision the allow competence of the Community on the matter of criminal law harmonization.

In the EU there is a principle of subsidiarity. From the beginning of the legislative procedure the Parliament of the Netherlands reacted negatively; it opposed the harmonization of penalties for piracy and took a stand that in this way the “zone of intervention” of the Community would be enlarged. Later on, the dissimilarities in the EPC on legal issues deepened. At this moment the proposition is that the criminal measures be limited only to the areas of copyright and trademarks. In addition, it has been recommended that criminal sanctions should only apply to those infringements deliberately carried out to obtain a commercial advantage. Piracy committed by private users for personal, non-profit purposes are therefore also excluded.

In the Bulgarian context

The stand of the parliamentary commission, which opposes basic propositions of the project for harmonizing the penalties in the IP sector, coincides with the campaign GDBOP undertook against torrent trackers. This concurrence gave the European parliament’s work a characteristic acoustic. There are thousands of propositions for a chance of the community legislation, but in Bulgaria propositions which about the Internet exchange of data echoed most loudly. Amendment 25 (Recital 10 a) proved to be very important for the situation here: (10a) It is understood that the non-commercial sharing of files between individuals is excluded from the scope of this Directive.

Very seldom the work of the European institutions on specific directives attracted so much interest as in the case of the proposition that the noncommercial exchange of files be dropped out of the scope of the directive. But let us once again take a look at what is going on with the EC legislation There is an impression that the European Parliament offers to decriminalize all violations in the IP sector or is giving up on some sanctions. On the contrary, with this project for a new directive the European Commission is seeking to introduce a coordinated zone, in which all violations be criminalized equally by the Member States. The proposition from the last few days is that this zone is limited significantly so that it does not include the exchange of files among private persons with a noncommercial purpose.

The text of the draft directive is about to be modified, it is too early now to predict how the final version will look like. Bulgaria is a member of the EU, the nation participates in the lawgiving process, Bulgarian ministers introduce opinions in the council, Bulgarian members of Parliament in the European Parliament are working in the parliamentary commissions and voting on issues. These are perfect opportunities to very accurately show the nation’s position on issues on the best balances between the protection of authors’ interests and the guaranteeing others their constitutional rights, including the right of access information and inviolability of person. After the directive is accepted, however, it must me introduced precisely and on time in the national jurisprudence and effectively applied. In this case the Community is uncompromising and sanctions severely all failures to execute obligations.

Not by all means

The campaign against the torrent networks have different assessments. A large number of the users are against it for different reasons. Leaving the desire to not pay for content aside, the negative reaction has its own reasons. The attempts to filter the content of the Web is a dark practice in some other countries. The filtering is neither well-grounded, nor possible. What could it show besides a demonstration of power? The application of the Penal code is only done by GDBOP’s judgment. By what criteria has it been made? The penalty requires an accurate identification of the guilty. How?

The deputy director of the Capital’s Investigating Authority gave an astounding interview in a local daily newspaper, in which he both disassociated himself from the law (“I don’t like anything in it”) and showed that he doesn’t understand what he is doing (“Our goal is not to eliminate all torrent trackers but to allow the spreading of information less protected by copyright”). Less protected information?

The Internet forums are very active. Obviously, the prevailing opinions are against the actions the Ministry of Interior is taking. But that is what the proponents say (L. Georgiev in Capital’s forum): “It is true that those campaigns are performed in the completely rude Balkan way, with the Ministry ignoring the law, but it is interesting why you fail to understand that the process of closing torrents and trackers is a global initiative, especially developed in practice by the authorities in Western Europe and, when we distance ourselves from the suspicious methods of our police, we will reach the conclusion that they are just trying to imitate their western colleagues.”

That is the whole problem. A global initiative, suspicious methods.

___
*Nelly Ognyanova is a lecturer in Media Law at the Sofia University “St. Kliment Ohridski”. She keeps a blog about media issues and new media at http://nellyo.wordpress.com/
** – GDBOP is the Bulgarian Directorate for Combatting Organized Crime, which by law has to deal only with organized crime, as its name suggests.
*** – This article was initially published in the Bulgarian daily “Dnevnikl“, and is translated by ISOC-Bulgaria, and published here under Creative Commons, granted by prof. Nelly Ognyanova