My blog: Response to @Europarl_EN’s “ACTA: experts reveal how it could effect civil liberties…” article.

The European Parliament have composed an article entitled, “ACTA: experts reveal how it could affect civil liberties and access to generic medicine“. I’m going to go through it in my usual style, commenting where I see fit

:-).

From the article:
Does ACTA pose a threat to civil liberties and developing countries’ access to generic medicine? Many people oppose the controversial anti-counterfeiting agreement because of concerns over these two issues. MEPs, who will be crucial to deciding the treaty’s fate in the EU, staged a special workshop on 1 March to grill experts about their insights into ACTA. Find out how they think the treaty will affect civil liberties and access to generic medicine.

Civil rights

Dr Olivier Vrins, of Altius Lawyers, said ACTA states that its provisions should be transposed with respect to fundamental rights such as freedom of expression and freedom to have a fair trial. “Fundamental rights of European citizens are not  in serious danger because of ACTA. The idea of proportionality is particularly important because it is applied as well by the European Court of Human Rights when balancing out various fundamental rights which might be in conflict, here the right on property on the one hand and on the other the right of protection of private life, freedom of speech and freedom of access to information. This preservation of fundamental rights means that not only that people would be able to say that certain acts do not infringe intellectual property, but parties must foresee certain exceptions and limits to intellectual property” ”

I have issues when caveats are loaded in front of, or behind, statements or words. They’re a red-alert for me.  In the above statement from Dr Olivier Vrins, note he uses the word “serious” in “Fundamental rights of European citizens are not  in serious danger because of ACTA.”  This indicates to me that they are in danger – just not what Dr Olivier Vrins views as “serious danger”.

Secondly, I was intrigued by the mention of the European Court of Human Rights (ECHR). After a two second Google, I am now concerned.  The European Commission and the European Parliaments INTA committee have both said they are going to ask the European Court of Justice (ECJ) some questions regarding ACTA. But, the two institutions are very separate, read about that here.

I think both the ECHR and ECJ need asking various questions with regard to ACTA and I would be very concerned if only the ECJ is asked questions.

Further from the article:
“Rupert Schlegelmilch,  of the European Commission’s directorate-general for trade, said that the Commission took concerns over civil rights extremely seriously, but there was no real reason to be worried. “Intellectual property is property but it’s not property only. Privacy and access to the net are just as important. We believe the treaty strikes a fair balance in that respect. ACTA does not impose a new standard. What will be imposed is what we have. Nothing new will be enforced. What is legal is legal, what is illegal is illegal. ACTA is just about making sure that people do something about it.” ”

I don’t think the evidence points to the European Commission (EC) taking concerns over civil rights extremely seriously at all, otherwise they would have asked the ECJ questions much earlier in the ACTA process.  I would have thought that the very latest they should have asked questions, was right after the Final ACTA text was available. To my knowledge, they have still not said they will ask the ECHR questions, regarding ACTA.

I am not sure by what Rupert Schlegelmilch means by, “Intellectual property is property but it’s not property only.” This seems to give Intellectual Property additional properties.

Mr Schlegelmilch’s “ACTA does not impose a new standard.” contradicts the so called “gold standard” other ACTA proponents use to describe ACTA. This mixed message from ACTA proponents is becoming the norm. Commissioner De Gucht has described ACTA as “a relatively modest agreement” as well as “significant”.

The line, “Nothing new will be enforced.” is misleading.  ACTA’s very role, is as an enforcement treaty – as De Gucht makes very plain. This is because current IPR are not enforced as strictly as ACTA proponents would like them enforced.
Further from the article:
“Generic medicine

Dr Meir Pugatch, of the Universityof Haifa, argued that ACTA will not have an impact on access to generic medicine, as the agreement does not cover patents. ”I think that we already have the necessary safeguards today to ensure access to generic medicines, and therefore I don’t think ACTA poses any serious concern, nor does it create a serious contribution to the issue. The problem is counterfeited medicines and substandard medicines.  If you end up using counterfeited medicine or substandard medicine, it could seriously damage your health. Those who suffer the most from substandard medicines and counterfeited medicines are poor populations.

Serious concerns have been posed by developing countries, – most recently when ACTA was discussed at the World Trade Organisation’s (WTO) TRIPs committee meeting. For more info on the fight that went on there, read this.

And lastly,  from the article:
“Commission representative Mr Schlegelmilch later added: “Developing countries will be able to continue to buy the generic medicines that they need just as before.

However, the British Social Democrat David Martin, who is responsible for steering ACTA through Parliament, said that many questions still remained about how the treaty could affect access to generic medicines: “What we don’t know is how border agencies will be asked to define counterfeit medicine as opposed to generic medicine, especially when many of these medicines that arrive at the frontier are packaged and labelled similarly to the original medicine. How will this operate?

Mr Martin said the workshop showed there was a need for more information, which is why it would be good for the European Court of Justice to give a ruling on questions to be prepared by Parliament. “There is an English expression where we say the devil is in the detail. The problem with ACTA is that the devil is in the lack of details. We don’t have enough information on many of the areas where in the end we will have to make a judgment on.” “

Mere assurances from proponents of ACTA are not reassuring. New/modified legislation/Treaties must be tested fully by the highest Court(s) so a fully informed view can be held by those (MP’s MEP’s) who have responsibility for that legislation’s/Treaty’s acceptance (i.e. passing it into law). David Martin (MEP) does seem to fully understand this and seems to be on-the-case, as the phrase goes.

Concerned citizens need to let their representatives (MP’s, MEP’s) and rapporteurs for new/modified legislations know of any concerns they have, so these representatives can answer those concerns. The alternative is for the concerned citizens to search for these answers themselves.

Sincerely,

awbMaven

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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”: http://keionline.org/node/1380

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] – https://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement

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My Blog: Comments on #INTA #ACTA Workshop (#ACTAws) – the #IPR and Copyright Enforcement Treaty

[oops, I’ve Published a draft, will add to this post later …]

(The workshop can be viewed here or downloaded (1.7 Gb) and played in VLC open source media player here. Thanks to François Revol @mmu_man for those.)
 

Commissioner for Trade, Kavel De Gucht, made completely transparent that ACTA is an Enforcement Treaty.

It is a Treaty to impose and allow others to choose to impose, in his view and that of ACTA supporters, some much needed enforcement of current laws [acquis] and Treaties (with a couple of ,they say, minor acquis changes) with regards to Intellectual Property Rights and Copyright (IPRC).

De Gucht is a big Dutch man, evidently has a temper, and evidently does not take kindly to having his fundamental views doubted.  I think we can accurately term him an IPRC Fundamentalist.

(He seems to have the “R” “P”, “F” from my term, BRPF, and with the insistence of enforcement, perhaps with the “B” or at the least, a small “b”)

Marietje Schaake ‏MEP (@MarietjeD66),  asked questions of the European Commission in 2010, regarding whether ACTA was an enforcement treaty or trade treaty.

De Gucht drilled home that the final version of ACTA before the INTA committee and European Parliament was, in his view, a very mild version compared to previous drafts and compared to what he and others would like to see. He called ACTA a “modest first step” in IPRC enforcement.

Evidence that ACTA is modest can be gleaned from what is missing from this final version of ACTA, that Parties to ACTA and member states of the EU have been asked to ratify. We have some access to some past drafts of ACTA, and such things as the Three-Strike-Rule did not make it to the final version of ACTA. Also, some of the compulsion in the wording has changed from “shall” to “may“.

I think it is fair to say that ACTA has been watered down and that IPRC Fundamentalists are planning to create less and less “modest” versions of ACTA in the future.

De Gucht drilled home that ACTA will merely be enforcing aqcuis and Treaties are currently in force and that were passed by previous EU institutions.  He said what is illegal now, will stay illegal; and what is legal now, will stay legal – that ACTA does not change any specific legalities. [I disagree with that, mainly on the criminality aspects of ACTA.] I note here that the EP now has much changed duties and responsibilities, post-Lisbon Treaty, and I think with ACTA we are seeing the EP flex its muscles more. I think this is causing (and will continue to cause) friction with the European Commission (EC).

Various speakers made mention of the various current EU acquis that ACTA is meant to enforce, these I have described more in previous posts in February. Many if not all of these acquis are in the process of being modified. I view these modifications and new instruments as additional “steps” and part of the IPRC Fundamentalist ideology of continued harsher terms for IPRC enforcement. De Gucht would (I believe) view them as being modest additional steps.

The European Commission was the main Party negotiating the non-criminalising elements of ACTA. De Gucht was forceful in reminding listeners thatMemberStatesand other Parties negotiated and have responsibility for the criminal elements within ACTA.

De Gucht and other IPRC Fundamentalists welcome the criminalising elements of the treaty, since they view copying IPRC as stealing. In their view, just as one is a thief if one steals an apple, one should also be considered a thief if one downloads a song/film without the IPR holders consent or if one sells/buys counterfeit goods.

…. to be continued

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My Blog: #ACTA fight at #TRIPs meeting at #WTO in #Geneva. A huge headache for many..

ACTA is causing palpitations higher up the elite food chain. From grass roots internet activists, through Civil Society, through academics, parliamentarians and now international trade delegations at the World Trade Organization (WTO).

Yesterday (01/Mar/2012), there was a TRIPs (Trade-Related Aspects of Intellectual Property Rights agreement) council meeting in Geneva. TRIPs is just one part of the broader WTO’s functions.

India, Egypt, Venezuela, and Ecuador were annoyed that ACTA was a main point in the TRIPs agenda, rather than a side [“other”] issue – but this was merely procedural nit-picking.  Their speeches regarding various elements of ACTA were far, far more interesting and biting.

Once the nit-picking had finished, those on TRIPs that had signed up to ACTA, such as the US proceeded, unsurprisingly, to vigorously defend the agreement [KEI‘s rejoinder to that US position is here]. They maintained the position that ACTA would not erode Fundamental Rights (freedom of expression, etc) and said another concern, access to generic medicines, would not be impeded by ACTA.

On generics, India, who is not and never has been a Party to ACTA, went ballistic on ACTA, saying that ACTA undermines the flexibility negotiated into the TRIPs agreement. Proponents of ACTA agree that ACTA is a TRIPs Plus agreement – i.e. it goes further than the TRIPs agreement in terms of scope and enforcement practices and that this is what they want in future IP and copyright scope and enforcement.

Indiais a developing country and is one of many developing countries that make, export and import generic pharmaceutical products. Generic products are re-makes of formerly patented products whose patents have expired, which means the original patented product is very often legally created more cheaply.

Brazil has had generic products it makes seized in European ports in recent years, so has India and others. Their fear and the fear of many others (Bangladesh, etc.) is that generics (which are legal) will face more and more scrutiny at border and ports of ACTA Parties. This increased monitoring and surveillance at ACTA Parties’ borders and ports could lead to a rise in generics being held by mistake – something worrying for generic medicines because they have a very limited shelf life and could be out of date by the time any dispute about the consignment is sorted out. The much greater fear is, that while legal generics are held up, people needing them will come to harm as a direct result of the hold up, and may even die as a direct result of a hold-up and, indirectly, because of ACTA’s increased border and port surveillance measures.

Brazil’s main concern was with the one-size fit all approach to Intellectual Property Rights (IPR)- implying that enforcement procedures should be harmonised.Brazil’s message was simple: one-size does not fit all!

Much of the above is talking about the generic medicines part of ACTA.  For more information I highly recommend looking at this site which does an excellent job of in-depth analysis and reporting than I could ever hope to achieve: http://keionline.org/

I’ll add to this post later with news from TRIPs regarding the Internet aspects of ACTA …

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My Blog: Right to Privacy vs ‘Right to Snoop’. A workshop before the net-war intensifies in our Surveilance society..

Over recent months due to a myriad of reasons, citizens’ internet (netizens) rights have been high on the political and news agenda.

We have had Internet Blackout Day to protest US legislation SOPA and PIPA.
We have had massive demonstration concerning ACTA, a Intellectual Property and Copyright enforcement treaty.
We have had many companies including Twitter being told to hand over netizens‘ data.
We have seen companies such as Twitter, Google, etc unilaterally expanding their use of netizens’ data.
We have had the EU and their Digital Agenda through the Digital Single Market and ‘Big Data‘ and the concern of ‘Big Brother‘.

We have a myriad of other proposed and/or new legislations such as Bill C-30 in Canada, the Communications Capabilities Development Programme (CCDP) and Digital Economy Act in the UK[1], the Passenger Data (PNR) in the EU, the Trans-Pacific Partnership (TPP) in the US & others, IPR Enforcement Directive (IPRED); Customs Enforcement;  E-commerce Directive; and the Data Retention Directive  in the EU, the list goes on and on and on. They all effect current netizens‘ rights, rights which are pretty weak as it is.

In the EU we also have the INtelligent information system supporting observation, searching and DEteCTion for security of citizens in urban environment” (INDECT).

Bruce Schneier puts is well in this article when he says, “Unlike the security risks posed by criminals, the threat from government regulation and data hoarders such as Apple and Google are more insidious because they threaten to alter the fabric of the Internet itself. They’re also different from traditional Internet threats because the perpetrators are shielded in a cloak of legitimacy.

In short, netizens‘ data is being fought over by many interested and competing parties as never before.

Most netizens are not educated enough about who has access to their data or what the organisations do with the data, myself being a prime example. Those netizens that take an interest are often both worried by what they find  (Green party politician Malte Spitz sued to have German telecoms giant Deutsche Telekom hand over six months of his phone data that he then made available here, in Mexico the same), and worried by what they are not allowed to find.

I think it is way past time we drew a line in the virtual sand and demand to know who has exactly what netizens‘ data; what organisations are doing with a netizens‘ data; how long organisations will have access to a netizens‘ data; and how a netizen can better control data that has been generated about them.

I do think that until we have action on the above to a level of satisfaction netizens (through Civil society groups [FFII, EDRi, EFF, OpenRightsGroup, Privacymattersetc] charged with looking after netizens‘ interests) agree with, that my own jurisdiction, the EU, enacts emergency regulations on e-organisations concerning the movement and use of EU netizens‘ data.

The merry-go-round of netizens‘ data must meet a netizens‘ Fundamental Human and other Rights, and it is clear to me that currently, netizens‘ Fundamental Human and other Rights are being severely breached and undermined.

Sincerely,

awbMaven

[1] – unfortunately for UK [+Polish] citizens, the UK government “added a few provisos when giving the Charter the force of law with the Lisbon treaty, one of those was to preclude the ECJ from judging whether a UK law violates the Charter (see article 1 of protocol 7).“, read here.
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My Blog: Increased risk of #Extradition via #ACTA Harsh Interpretation and Implementation would make it easier.

Expanding in my initial perhaps tin-foil cap view yesterday regarding extradition via ACTA.

A refresh of what European Commissioner Karel De Gucht said (and my comments, from early-hours-of-this-morning post: https://awbmaven.wordpress.com/2012/03/01/karel-de-gucht-1st-exchange-of-views-about-acta-at-inta-29th-feb-2012/ ),

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.

A refresh of my first thought:

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.

In the UK there is the Extradition Act [2003], here is a pertinent fact from the Crown Prosecution Service’s fact-sheet:

The meaning of extradition offence is given in sections 64 to 66 of the Act. In simple terms, in cases where a person is wanted for prosecution the offence must usually be one that could lead to a prison sentence of at least 12 months in the requesting state. For certain offences that are listed in the framework decision and which could lead to a prison sentence of at least 3 years in the requesting state, there is no requirement that a parallel offence exists in UK law.
http://www.cps.gov.uk/news/fact_sheets/extradition/

Should a Party to ACTA domestically pass legislation that makes infringement IPR (by creating, obtaining, or aiding the obtaining of ACTA defined infringing goods) an offence that carries a tariff above the threshold in the Extradition Act, that state could request the extradition of the infringer to stand trial in that harsh implementer-of-ACTA’s courts.

The Bulgarian commentator in INTA today said Bulgaria did not want to criminalise it’s citizens for pirating goods. If Bulgaria were to sign up to and ratify ACTA and some other party were to implement legislation domestically criminalising pirating of goods, Bulgaria would imv have been partly responsible for criminalising their own citizens, something he said Bulgaria specifically did not want ACTA to achieve.

States signing up to ACTA risking criminalizing their citizens indirectly and subjecting their citizens to possible extradition to other Parties to ACTA via the mechanism extradition Treaties and the criminalization of previously civil and/or low tarriff matters.

Additionally, Karel De Gucht European Commissioner for Trade talked a lot about it being the responsibility of EU member state and Parties to ACTA to  interpret, implement, and enforce what the broad meanings of terms in ACTA meant to them.  This gives rise to many possible interpretations, implementations, and enforcement procedures, as many as their are Parties to ACTA.

Some Parties [Bulgaria] could choose mild interpretations, implementations, and enforcement procedures, other Parties [USA] could choose very harsh interpretations, implementations, and enforcement procedures. Those milder Parties with extradition treaties to harsher Parties need to understand the risks ACTA posses to their citizens.

In Sweden last year, “15-year-old facing jail time for downloading 24 movies. A 15-year-old boy in Sweden is facing up to two years in jail because the head teacher at his school reported him to police for illegal file downloading.“: http://www.geek.com/articles/news/15-year-old-facing-jail-time-for-downloading-24-movies-20110824/

In the United States, “the Copyright Act provides for criminal prosecution in some cases of willful copyright infringement. There are also criminal sanctions for fraudulent copyright notice, fraudulent removal of copyright notice, and false representations in applications for copyright registration. The Digital Millennium Copyright Act imposes criminal sanctions for certain acts of circumvention and interference with copyright management information. There are not criminal sanctions for violating the rights of attribution and integrity held by the author of a work of visual art. Criminal penalties for copyright infringement include: fine of not more than $500,000 or imprisonment for not more than five years, or both, for the first offense.“: https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States

In the US, a woman was fined $1.5m for downloading 24 music files. Are citizens of countries who are Parties to ACTA facing extradition to the US for a similar offence, indeed, is it thoretically possible for them to be extradited to the US for downloading just one IPR infringing song/film?

So in summary, the criminalization via ACTA and the whims of harsh enforcers of Parties to ACTA could lead to unintended consequences for the citizens of milder Parties to ACTA.

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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

Posted in Activism, EU Legislation of the Internet, Privacy, Protesting, The Freedom Revolution(s) | Tagged , , , , | 2 Comments