File sharers could soon be shackled by a new EU directive

Last Tuesday, in committee room A3G-3 of the Altiero Spinelli building of the European Parliament, just across the road from Gare Leopold in Brussels, a group of MEPs and administrators gathered to hear Janelly Fourtou argue that I should be sent to prison.

Of course, they didn't mention me by name, but Ms Fourtou, an MEP and the driving force behind the European Intellectual Property Enforcement Directive, wants to make a criminal of anyone who uses peer-to-peer networking software to share unlicensed copies of music, movies and other products of the entertainment industry.

Since I've got KaZaA on my laptop, and have been known both to download remixes of the White Stripes or old Velvet Underground numbers (please don't judge me too harshly - it's my age), and to share the occasional file that might be lying on my hard drive, that means me.

It probably means you as well, if you're a regular internet user who has realised that there is a lot of old music out there that you simply can't find in record stores, but is easily available over one or other of the P2P networks.

Criminal class

The IP Enforcement Directive is the latest of a whole batch of internet-related legislative proposals to have come out of Brussels this year.

We've had the Copyright Directive, a directive covering direct marketing and spam email, and proposals to allow software to be patented.

Since the IP Directive was first proposed in January it has attracted a great deal of attention, and a lot of adverse criticism, because it would provide the same sort of legal protection to copyright holders in Europe as they currently have under the Digital Millennium Copyright Act in the United States.

This means that anyone who thinks that their copyrights are being breached could use the courts to obtain personal information from internet service providers or web hosting companies.

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It also means that breaking technical copyright protection measures for any reason, even if it is to make a legally-permissible copy of a file for backup purposes, would itself be illegal.

In theory, harmonising the way copyright is protected throughout the EU is a good thing.

As a writer I rely on copyright law to ensure that I get paid for the things I publish, and I do not want to see copyright disappear because of the ease of online file copying.

Content control

But any new law should attempt to balance the interests of rights holders, whether they are large multinational corporations or individuals, and those of the wider community.

We should never forget that copyright and patents are a bargain, a deal between the people and the creators of anything from a story to a song to a great film, and the bargain needs to work for both sides.

It is probably not a coincidence that Janelly Fourtou, the MEP who is pushing the current draft directive forward, is married to Jean-Rene Fourtou, the Chairman of Vivendi, one of the world's largest media corporations.

All of the proposals she has made, especially the suggestion that even non-commercial file sharing over P2P networks should be a criminal act, favour large corporations like the one her husband works for.

Fortunately, the Directive has a long way to go before it is accepted, and even then member governments have to apply it in their national law, which always takes a while - the EU Directive on Copyright Protection was only implemented in UK law this month.

In the UK, the Patent Office has just announced a consultation on the draft IP enforcement directive, which runs until January 12.

Jail terms

That might seem to be rather too late, since the Council of Ministers plans to discuss the Directive on December 15, but these timetables are always rather flexible and there are a lot of steps to go through before a directive becomes community law.

I don't want to go to jail just because I share a few songs online in the way that I've shared cassette tapes and videos for years

The obvious first step is to respond to the Patent Office request for input.

However, its ability to disregard comments that do not fit with the government's agenda was clearly demonstrated when the protests about the EU Copyright Directive were ignored, so that the law we got was effectively the one that was initially proposed despite the extensive 'consultation'.

It may be better to work with campaigning groups like CODE and ffii (the Foundation for a Free Information Infrastructure), both of which are arguing strongly against these measures.

Their recent success in delaying the vote on whether software patents should be allowed in Europe shows that the legislators can be influenced.

It is also important to press for changes before the Directive is finalised, since national governments have limited scope for changing things after that point.

I don't want to go to jail just because I share a few songs online in the way that I've shared cassette tapes and videos for years, and I don't see why copyrights in music, movies or software should be enforced with criminal sanctions when my rights to make reasonable and fair use of the same material are taken away from me.

If I was sitting in a warehouse in Bristol making thousands of copies of the new Sophie Ellis-Bextor album, then I'd hold my hands up when the police came knocking at the door, but making a copy so my daughter can listen to it on her own CD player doesn't seem like breaking the law to me.

Or, I suspect, to many other people outside the record industry.