My blog: A netizens’ response to #EU’s “IP Enforcement Trends” statement. #ACTA #IPR #Trend

(this is a re-post after having accidental over-written the original due to a hangover, I will edit this to get the links and formatting right a little later)

I read an article today on “ACTA: European Union’s statement on IP Enforcement Trends at WTO Council for TRIPS”:

I will comment below in the style of the Statement:

Agenda item N.a. – Necessary Netizens’ Rights trends

In the European Union our strengths are our citizens and our cultures. Our strengths are inside our heads – in our creativity, our capacity to innovate and our commitment to quality.

If citizens are to be creative, they require both protection and enforcement their Fundamental rights and their Lesser rights. EU citizens’ Fundamental and Lesser rights are protected by law (acquis) and by Courts including the European Court of Justice (ECJ).

It is outlined in EU acquis and case law what are the primary Fundamental rights and secondary (Lesser) rights and how they can be protected, the means to enforce them, and the balance of Fundamental and Lesser rights.

EU creators of Intellectual Property enjoy protections of their creations through Lesser rights. Those Lesser rights have the aim of incorporating safeguards to the Fundamental Rights that have primacy over Lesser rights. Any  elaboration of IPR protection systems must safeguard Fundamental Rights. Lesser Rights such IPR must protect the Fundamental Rights,  rights of citizens to free speech, data protection and access to information as well as the rights of Internet service providers and other intermediaries who deal with protected goods. These two goals must be compatible and mutually supportive, and they should be shown to be compatible and mutually supportive before they become part of EU acquis.

There are forces in Europe attempting to evolve IPR enforcement. The stated aim is for IPR enforcement to become increasingly effective. This must be shown to remain compatible and mutually supportive of Fundamental Rights. Customs enforcement legislation is currently being reviewed and this review must assure that modifications to Customs enforcement legislation is compatible and mutually supportive of Fundamental Rights.

There are forces in Europe attempting to revisit the civil enforcement legislation in the coming years. Any review of civil enforcement legislation must include knowledge that modifications to civil enforcement legislation are compatible and mutually supportive of Fundamental Rights. A European Observatory on the protection of IPR has been created, whose primary goal is to obtain factual and accurate information that is so necessary to better substantiate new policy measures and to optimise resources.

I propose a European Observatory on the protection of Citizens rights. Its primary goal is to obtain factual and accurate information that is so necessary to better assure that modifications to Fundamental rights, Lesser rights, other proposed acquis and Treaties are compatible and mutually supportive of Fundamental Rights  so we can substantiate new policy measures with the aim of optimising resources.

The Commission is preparing initiatives to make digital content more accessible to citizens. For instance, there is work in progress on a pan-European license for music; easier licensing for so-called “orphan works”; and the creation of online digital libraries. These initiatives should be created in tandem with the proposed European Observatory on the protection of Citizens rights to assure that these initiatives are compatible and mutually supportive of Fundamental Rights.

The aim of these initiatives is stated as giving consumers and users better access to cultural content while allowing for new business models to thrive. These initiatives must be shown to be compatible and mutually supportive of Fundamental Rights.

Another tool being proposed which aims to ensure a more ‘efficient’ international level of IP enforcement is ACTA.  ACTA too must be compatible and mutually supportive of Fundamental Rights.

ACTA is an enforcement treaty. It currently does not cover the details of what is legal and what is illegal; it has not been though the process of ensuring it is compatible and mutually supportive of Fundamental Rights. It’s proponents aim to address procedures for ensuring that what is illegal can be redressed. It aims to deals with civil, criminal and border enforcement. It sets out some basic principles for internet enforcement. It forces as well as encourages international cooperation on enforcement between 38 countries and can effect non-ACTA countries. ACTA, like all acquis and Treaties, should need to pass through the proposed EuropeanObservatory on the protection of Citizens rights to assure that these it is compatible and mutually supportive of Fundamental Rights.

Proponents of ACTA aims are that companies and individuals who wish to protect their ideas so as to defend their livelihoods will find it easier to do so in the 38 countries that have signed the treaty and effect to a degree non-ACTA Parties. These aims need to be compatible and mutually supportive of Fundamental Rights.

ACTA is an agreement between a limited number of countries that also could effect all countries.

Proponents of ACTA say it is a significant first step as well as a modest first step. Proponents of ACTA aim to establish a nucleus of countries that are committed to the standards of intellectual property rights enforcementset down in their respective countries. Proponents of ACTA aim is that this nucleus of First Parties & Ratifiers of ACTA will grow.

Proponents of ACTA would have liked to have negotiated this agreement at a global level. That was not possible. Some countries who have joined this agreement are having second thoughts as issues have been raised about ACTA’s. The Senate of Mexico voted unanimously to withdraw from ACTA [1]. Some Parties which were expected to sign ACTA, such as Germany and the Netherlands have not yet signed ACTA. Some Parties have halted their ratification process Bulgaria, Cyprus, the Czech Republic, Estonia, Germany, Latvia, and the Netherlands, Poland.

There are touted “misconceptions” about ACTA:

There are no provisions in ACTA that could directly or indirectly affect the legitimate trade in generic medicines or, more broadly, global public health.
ACTA, like the TRIPS, also excludes patents from criminal and border measures. The text of ACTA is publicly available to all since April 2010, and has already been made public during the negotiations.
ACTA was not negotiated as a secret: As the US mentioned, the text was available during the negotiations. The European Commission organised four stakeholder conferences on ACTA which were open to all – citizens, industry, NGOs and press.

These “misconceptions” conceal and reveal other concerns through the  language used and what is missing from their explanations.

There is little if any proof offered, merely broad statements masquerading as fact. What is included, as opposed to excluded, in criminal and border measures is missing in the tout. The documents that have not been made public have not been highlighted or mentioned, and neither has the highlighting or mentioning of documents being released with redaction of text in those documents. There is no mention of the force that had to be applied by interested parties to gain access to some of the documents that have been released.

A bare-faced lie is that ACTA was not negotiated in secret. What is true is that ACTA was not negotiated in public and that all key preparatory documents are still not available to the public or to Interested Parties and Civil Society.

ACTA does not contain unequivocal language safeguarding access to health while it does refers to the Doha Declaration on intellectual property and public health, it is not binding.

During ACTA negotiations, there is no doubt that certain Interested Parties had greater access and influence in the negotiation procedure than other still-Interested Parties.

Proponents of ACTA say NGO’s were extensively debriefed, that academia and representatives from political parties were represented during the last four rounds of negotiations in side events during the negotiation sessions. Proponents of ACTA say this shows there was no secrecy in ACTA negotiations and shows that ACTA was negotiated in a transparent and open manner.

I think it shows no such thing, indeed, it shows the opposite, and together with NGO’s, academics, representatives from political parties, Civil Society and other interested citizens, I say no, ACTA was negotiated in secret from where I am standing, that negotiations were not transparent to me and still are not, and that some negotiating actors were not and are still not being open to me.

In short, ACTA may do a lot of things; it may improve systems currently in place; it may break and/or make worse current systems in place; it may or may not be compatible and mutually supportive of Fundamental Right.

When analysis what ACTA will do and could do, we need access to all the key preparatory works. These will show what the proponents of ACTA wanted to do, and as proponents of ACTA say ACTA is just a small, modest and significant step, we should decide whether we want to lay a step down the road they want us to build, or not.

I hope the various Parties to ACTA and Interested Parties around the world look very hard at what ACTA would and could do, and trend ACTA is a ‘modest/significant‘ part of.

[1] –

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