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This paper discusses a change to European Union (EU) telecoms law which de facto permits operators to impose restrictions on network traffic, and which enables such restrictions to be imposed for the purposes of copyright enforcement—thus it simultaneously facilitates two different policy agendas from the copyright and telecoms industries—‘three-strikes’ as well as ‘traffic management.’ The mechanism is a provision concerning users’ contracts, supported by generic provisions addressed to EU governments and regulators. The change went into law in late 2009, within the so-called ‘Telecoms Package,’ which, together with the E-commerce directive, establishes the EU legal framework for telecoms networks. In terms of the latest initiative on IP Enforcement, ACTA, this is the much-cited EU aquis communitaire, with which ACTA must comply. This paper addresses how the change came into being and possible interpretations and implications for copyright enforcement policy.

The research for this paper forms part of the author’s doctoral research. The Telecoms Package policy process was observed contemporaneously as part of a cross-disciplinary policy study, and the analysis of the legislation in this paper relies on original EU policy and legislative documents.