Karel De Gucht 1st Exchange of Views about #ACTA at #INTA 29th Feb 2012

The text of his speech is linked to below:

“Karel De Gucht European Commissioner for Trade ACTA – State of Play 1st Exchange of Views with the Committee for International Trade of the European Parliament Brussels, 29 February 2012”
http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/12/136&format=HTML&aged=0&language=EN&guiLanguage=en

I have to assume that he also read newspapers and/or follows the debate on the internet, so one could be forgiven to think he’s decide ACTA means “the end of democracy, the censorship of the internet and the restriction of access to life-saving AIDS medicines in developing countries.” Of course, we have brains too, and they’re likely more engaged than this pompous civil servant who thinks he’s a politician.

“…my message to the people of Europe today is simple: ACTA is not an attack on your liberties; it is a defence of your livelihoods.
This is not 1984; this is 2012. ACTA is not about ‘Big Brother’. ACTA is about solving our economic problems in 2012 and beyond. And in 2012 we have real economic problems that we must take action to solve.”

I know plenty of people who enjoy liberty now who may not be at liberty should ACTA be approved. I don’t know anyone who’s livelihoods depend on ACTA being approved. I know lots of people who could have to pay more money for their little enjoyments in this life. I’m not sold by comforting words, I’m sold by logic.

The 1984 reference is to a Surveillance society, yet how can people be checked for counterfeit or pirated goods without being monitored and/or searched?  ACTA is not going to be the magic bullet that solves our economic problems, or if it can, show how it can.

I’m not sure picking Nokia as an example of European IP rights is a good idea.  Much of its software is Open Source; Free, and was created like that by Nokia.
“We have also chosen to safeguard the rights of citizens to free speech and data protection as well as of internet service providers and other intermediaries who deal with protected goods. The European Court of Justice is the ultimate guardian of these safeguards and it has confirmed some of them just this month in a landmark ruling on monitoring of internet traffic.”

I wrote about those rulings, the Court made clear that the policing of data in Europe should not be carried out by Internet Service Providers (ISPs), and the court said the filtering required would contravene rights to freedom of business, personal data and freedom of information [1]. Calling an apple an orange does not make it so, more on apples latter.

“What the European Union is trying to do with its partners in ACTA is to extend the benefits of this system beyond our borders. ACTA represents a small – but significant – first step towards stamping out the global counterfeiting and piracy industry.”

No wonder many at the WTO this week screamed blue murder regarding ACTA. ACTA supporters want to embark on a kind of legal IP empire-building.

“ACTA is an enforcement treaty. That means it does not cover the details of what is legal and what is illegal but it does address procedures for ensuring that what is illegal can be redressed. It deals with civil, criminal and border enforcement, sets out some basic principles for internet enforcement, and encourages international cooperation between 38 countries.”

OK, it’s an enforcement treaty.  These countries outside ACTA are by definition not Party to these enforcements, so it’s an internal enforcement Treaty, not an extra-ACTA enforcement treaty. He later sets his ‘hope‘ on “further expansion as more countries join” ACTA.  Early adopters are the laboratory guinea-pigs.
“In practice, this means that Europe will not need to make any change to our current legislation in order to comply with ACTA.”

I’m not sure if he means EU law or member states law, or whether that “any” is really that absolute.

“ACTA will not censor the internet. By that I mean that it will not require monitoring of people’s e-mails, their blogs or their file-sharing activities. ACTA will not oblige the inspection of individual laptops or MP3 players by customs officials.”

When you take-down a website or page, is that not censorship? Again I ask, how will you know who has broken the law without monitoring them [as Germany monitored 37m emails last year]?  I wonder if he is hiding behind the words “not require“, “not oblige” and “not impose” and knows ACTA has wording that would make monitoring at least a nice-to-have (“may“). He deals with “may” a little later.

“ACTA states that countries signing up may give their intellectual property enforcement authorities the power to compel an internet service provider to disclose personal data on subscriber accounts to rights holders, if the account is suspected of being used for infringement.

To understand the provision, let’s first imagine a scenario where it might actually be used, if one of the ACTA signatories chose to put this in their domestic legislation.

Let’s say a particular website is alleged to be profiting from giving unauthorised access to a copyrighted episode of a television series. If such a provision was in the law of an ACTA signatory, it would mean that the producer of the series could make a request to the competent court. It would request that the company that is hosting the website disclose the identity of the individual who is allegedly making money from their unauthorised dissemination.

But, for any action to be taken against that person, the copyright holder would have to either pursue them through the court for civil damages or report their action to the authorities for criminal prosecution, as you or I would report a stolen wallet or purse. No legal action would be taken against the person concerned without due process under our existing law.

But we must understand something else: this provision of ACTA is not even legally binding. International treaties do take precedence over European and national law in our legal order. But when an international treaty indicates that the signatories “may” take a particular course of action it does not mean that they have to take that course of action. In this provision, ACTA changes nothing about our freedom to make policy. The treaty is simply pointing out what some of its signatories consider to be best practice.”

My first thought was, this is setting people up to be extradited to ACTA signatories who go the whole hog and “choose” to implement ACTA with the harshest interpretation & options they can.  I can think of one country who has lots of IP who is not averse to extraditing people on mere accusation – the USA. Currently, they cannot be extradited, but once it becomes a criminal matter, the USA could set tariffs high enough to mean extradition would be a legal avenue they could pursue.

“I would first like to say a word on something that is behind much of the concern about this agreement but not always openly expressed.

I think it’s probably fair to say that everyone in this room knows someone who, without paying for it, has downloaded onto their computer a song, an album or an episode of a television series.

I cannot, in good conscience, condone that action. I know there are some people who see this differently, young people in particular. But for me there is no moral difference between taking something that is not yours in the physical world and doing so in the virtual world. Illegal file sharing means money that should have gone to some of the most creative people in our society does not. It is a disincentive to their work.

Maybe some of you in the back of your mind are worried that the people you know may be subject to fines or jail as a result of ACTA. But today’s law is quite specific here. Because to steal even an apple remains a crime that can be reported to the police. However, to share a song without paying for it, while strictly speaking illegal, is not a criminal offence. Damages may be awarded by a judge but there is no possibility of punitive action unless the activity were to be carried out at a commercial scale. This is why today, for example, the people behind and profiting from sites such as ‘Megaupload’ now find themselves in the spotlight of the law – and not the tens of thousands of end-users worldwide. This is common sense!”

Copying is not stealing.  It is as simple as that.  Another point is that I can buy an apple and let my friend have a bite of it without wondering if PC Plod is going to arrest me for sharing my apple with someone, unlike a song.  I could also take a portion of the apple, the seed (as long as it is not a Monsanto GM seed, granted), and grow it into a new product, a bit like taking a sample of a song and created a new song.

Perhaps Intellectual Property Rights could become in a way, Genetically Modified via ACTA.

“ACTA does not delegate any EU or national powers to a shadowy international committee that is not accountable. First of all, the members of the Committee are the representatives of governments, including all of the Member States. Second, any amendments proposed by one of the governments or the Commission would have to pass through the full ratification process under the EU treaties. That means that you and the Member States’ parliaments would have full democratic participation in the decision to accept or reject it. ”

The first point is interesting as the make up of the ACTA committee is not, afaik, public knowledge.  Indeed ACTA needs to come into force before the Committee is formed.

“The process of negotiating this agreement has been democratic as well. Parliament has been fully informed of the process all throughout the negotiation – even more so, I feel, since I have taken up this office. From the very moment I have taken on the responsibility for this file, I have urged the negotiating parties to disclose the drafts and that is what has happened. We have had extensive and useful conversations on the subject and you, honourable members of Parliament, have had access to all documents necessary to fully scrutinise the Commission’s work as a negotiator. ”

Parliament has not been fully informed. Parliament has been given some documents and some of those have been redacted. It demanded several times access to documents and only some of them have arrived, some redacted. For a fully informed view to be possible, all “key preparatory works” need to be released, and they have not ALL been released.  I myself I put a FOI request in for these documents, below is a portion of the reply:

‘I regret that the other draft negotiating and further texts that you have requested are withheld as they are exempt under the following sections of the Freedom of Information Act: s.35(1)a (formulation of Government policy) and s.27(2)
(international relations).

These are qualified exemptions and are therefore subject to a public interest test. After careful consideration of all the circumstances of the case, the conclusion reached is that the public interest in maintaining these exemptions outweighs the
public interest in disclosing this information.

For your information, these are the arguments taken into account in determining that the ACTA draft negotiating texts should be withheld. There is some general public interest in the disclosure of information since greater transparency makes
the Government more accountable to the electorate and increases trust, and also enables the public contribution to policy making to become more effective.

However, we consider that there is greater public interest in maintaining the exemption provided for in s.27(2) as it is judged that the public interest would not be served by putting these texts in the public domain as this would prejudice relations between the UK and the other negotiating States and parties. This would have a prejudicial effect on the interests of the UK abroad, including the promotion and protection of such interests. A negative reaction from the other negotiating parties concerned is likely to damage the United Kingdom’s relations with them and which would damage our ability to protect, promote and secure outcomes in the United Kingdom’s interests at negotiations of this type.

Officials must also consider the reputational effects on the Government itself of the release of documents or assessments that are “work-in-progress” and would not otherwise be considered fit for publication because they are not fully developed.
There is also the danger that disclosure of the process of interdepartmental consideration may undermine the collective responsibility of the Government if release of considerations and/or discussions prejudices the full development of
policy options or the willingness of ministers and officials to exchange frank views during policy development in future. For these reasons the information requested is withheld by virtue of s.35(1)a.

I appreciate that this refusal may be disappointing.‘

Disappointing indeed considering we’re being told we have access all the documents and the negotiations have been “transparent”. As transparent as a stone-wall imho.

I look forward to tomorrow (or rather, later on today, 01/03/2012) for at 9.00 am both Chris Martin, the EP Rapporteur for ACTA, Karel De Gucht will be being interviewed by the BBC. I do hope Mr Martin offers Mr De Gucht an apple.  Should Mr De Gucht accept said apple, Mr Martin should wrying murmur, “thief”. 😉

Mr Chris Martin will deliver his own speech, delayed from today, at 10.00am tomorrow, and there will be some more time for questions before the afternoon ACTA workshop which I think starts at 17.00.

Sincerely,

awbMaven