Archive for March, 2010

IFLA position paper on ACTA

IFLA position on ACTA

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The ACTA stakeholder meeting last week revealed that ACTA is going nowhere. The best indication for that was the lack of interest expressed by rightsholder groups. No one is interested in the technical mess and the broadened agenda. The poisoned apple was the unpassionate call of a few rightsholders who said they fully support the Commission and negotiator Luc Devigne said “thank you”. That is awful as it may get.

The EU negotiator is forced to deny and bend the truth on multiple fronts. That is a weakness, any supporter can withdraw and say they were deceived (like US-democrats “found out later” they were “deceived” by the Iraqi WMD tales). The Commission was very open about her agenda, now it is forced to hide and deny. Devigne irritates supporters who notice that the Commission lacks the power and guards a technically broken process with contradictory public statements to public and parliament alike.

Mr. McNamee commented for EDRI:

At a meeting in Brussels on 22 March 2010, the European Commission presented a counterfeit version of ACTA to participants. As with any good counterfeit, it bore quite a strong relationship with the genuine article. However, the differences were quite obvious for those in the know.

Mike Masnik puts it in excellent terms:

The talking points from ACTA negotiators seem clear. When accused of being secretive, deny it and insist that you’re being open. If really pushed on the matter, blame mysterious, nameless “others” for keeping the documents secret. Then, when specific items in the text are brought up, insist that these are being misrepresented, and if only you could see the real text (which you can’t, because it’s a secret) you’d know that it was all blown out of proportion. Then, finally, insist that ACTA won’t change any laws. Of course, if that were the case, there would be no need for ACTA at all.

Now, despite Masnik’s view the overall setup was not so inconsistent when you consider the 2008 story from the Commission on ACTA, it was consistent and easy:

  • ACTA won’t change domestic laws. We are a coalition of the willing ready to confirm the status quo beyond TRIPS. We have to shop forums because WIPO and WTO are blocked.
  • ACTA would be used as a trade chip in negotiations with ‘problem states’, and once adopted, traded on them with appropriate trade incentives.

Of course the second was against the UN Charta principles to which the Commission is bound by the EU treaties, a bit like “We have to invade Tschingingistan to save the oil”. But the 2008 narrative is not true anymore.

First of all the Commission negotiators went beyond confirmation of the status quo. All players expected so but following their maximalist negotiations approach they didn’t cheat a bit (cmp. EU-Korea FTA) but went too far. ACTA includes a wide range of new and controversial matters, many of them introduced by the Commission negotiators. Thus ACTA is drawn into a political conflict over parliament scrutiny powers and legislative competences (same on the other side of the Atlantic, cmp. the constitutional criticism on the presidential adoption plan by Lessig). The Commission does not do that in the open. They say they won’t go beyond the acquis but the inclusion of criminal matters which are not in the acquis raises eyebrows. These criminal matters are negotiated by the presidency, under an uncertain procedure. What does “not beyond the acquis” mean?

Secondly, Devigne denied the second item in the answer to Hammerstein, who asked about the Commission’s name and shame list. It seems riddiculous to deny such an approach and plan given the “Global Europe” strategy contents, also given earlier statements from the directorate. They would no do that, indicated Devigne. How pathetic!

Oh, and let’s not mention the desasterous performance of Devigne regarding admitting that they won’t respect the parliament’s resolution on limit to counterfeiting. There he stressed being in line with the acquis again.

What does “not beyond the acquis” mean? It probably does not mean what we ought to think and that provides room for great controversy in Parliament, will attract all parties to dig into the technical vulnerabilities of the process under the Treaties. What DG Trade apparently fails to realise is that they lack competence to go beyond the acquis. When Parliament calls you to respect the acquis, that is like when I am warned to obey the law. So you don’t get any flowers for that. When parliament asks to limit an anti-counterfeit treaty to counterfeit, just do that.

How many hearings of that kind could the Commission still afford, until a superiour would have to pull the plug? Observers noticed how Luc Devigne became the minedog while his colleagues hide away.

On Tuesday a consolidated version of the January state of discussions was leaked on the internet. The text shows that ACTA is nowhere near consensus. Trade negotiators are no specialists for international legal harmonisation. Legal harmonisation takes decades, slow and thoughtful debate.  Now a community of international legal specialists would jump in and inspect the leaked mess. More tricky questions to the negotiating parties ahead. More interest groups interested to put their stakes out the fire. How long would it take unless everyone notices that ACTA has nothing to do with a trade agreement (TRIPs was based on a fiction of barriers to trade) but is legislative? Mind the total costs of ownership (TCO) of untruths. Mind the incapability of the Commission to establish trust in parliament. Mind the technical difficulties of the process and on how many sides it can be challenged. Mind the still unresolved secrecy which attracts attention.

It is ACTA’s beginning of the end.

Open technical questions?

Just approach your ALDE MEP, they will have the next political hearing with the Commission on ACTA. Or contact the Commission, they offered to answer your questions.

Video recordings












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Dieser “Antrag der Fraktion Bündnis 90/Die Grünen, der Fraktion der SPD, der Fraktion der CDU, der Fraktion Die Linke und der Fraktion der FDP Berücksichtigung des Datenschutzes und Verhinderung von marktbeherrschenden Standards bei der Umsetzung des IT-Staatsvertrags” wurde verabschiedet in Berlin.

Die im Staatsvertrag vorgesehene vorrangige Verwendung beste-hender Markstandards darf nicht zu marktbeherrschenden Positio-nen von Anbietern dieser technischen Standards führen.

Der Begriff des Marktstandards im Staatsvertrag war in der Tat etwas unglücklich. Ganz gewiß kein Zufall. Nun besteht aber die Chance zu definieren, was ein Marktstandard ist. Das war so auffällig hineingeschrieben, das es bestimmt noch mehr Debatten wie in Berlin geben wird.

Von der Generaldirektion Unternehmen der EU gibt es ein beeindruckendes Konsultationspapier zum Thema Standardisierung. Es geht um die Zukunft der Europäischen Standardrahmengesetzgebung. Dort definiert man Normen als Marktstandards:

Die Normung hat in Europa die Form einer freiwilligen Zusammenarbeit zwischen
Wirtschaft, Verbrauchern, Behörden, Sozialpartnern und anderen interessierten Kreisen und
steht unter der Zuständigkeit unabhängiger Organisationen.

Ausserdem läuft noch die Konsultation zum Thema Europäische Interoperabilitätsstrategie, die merkwürdig bei Adam und Eva beginnt.

Einige Kollegen von mir werden demnächst einen deutschen Radiosender auszeichnen für seine Standardfreundlichkeit und Offenheit bei Streamingdiensten. Die Torte ist schon geordert und ordnungsgemäß verbucht.

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Microsoft has shot the .NET ecosystem in the foot because of the constant threat of patent infringement that it has cast on the system, Novell vice-president and Microsoft MVP, Miguel de Icaza, is quoted…

Indeed, it is not about actual risks but platform confidence. That is a real pity because the Microsoft .NET platform overcomes certain limitations of operating systems and offers a path to cross-plattform standardisation.

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Got this mail:

The French and German versions of ‘Single Market News, issue 56 ‘ are now available in German at: http://ec.europa.eu/internal_market/smn/smn56/index_de.htm and in French at: http://ec.europa.eu/internal_market/smn/smn56/index_fr.htm

Please enjoy your reading and don’t hesitate to contact us if you have any further questions.

The Single Market News team
DG Internal Market and Services
Tel: (32-2) 2961185 Fax: (32-2) 2954351
Email : mailto:markt-smn@ec.europa.eu
Office: SPA2 01/008, Rue de la Loi 200, B-1049 Brussels, Belgium
Internet: http://ec.europa.eu/internal_market/smn/index_en.htm

I wonder: What are Single Market News worth from a news team when they are usually outdated. Additionally SMN get published even later in the other working languages German and French. Worth to read in the 56 edition is of course the interview with the former Commissioner Charlie McCreevy. English version of SMN and here is the evil interview. I find the German translation stunning:


‘I singularly always refused to start this legacy business of going back on what were the greatest achievements.


„Ich weigerte mich immer, mich auf eine Diskussion über mein Vermächtnis, über meine größten Erfolge einzulassen.“

While the English phrase plays down on his success, the German version indicates his utter failure. But the German version may be closer to the true meaning, as McCreevy says:

We didn’t anticipate that there was going to be this tsunami of joint financial crisis which inevitably led to an economic downturn as well. I didn’t wish that to happen and if I had known that was going to happen I would have said ‘God get me out of here, get me another job!’ But that’s what happened.’

McCreevy put special emphasis on reforms which were obsoleted by the financial crisis. The down side of it is that now the internal market portfolio of Commissioner Barnier is more or less a lame duck.

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German law in English provided as a service of the German Foreign Office.

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GM Augmented Reality

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A new Scribus version is available.

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Cory Doctorow on ACTA where he puts the good old WIPO procedure into perspective:

Historically, developing countries have asked the UN’s World Intellectual Property Organization for “technical assistance”…

“Technical assistance” is a great euphemism for bribes. Same applies to the WIPO ‘development agenda’. Anyway, the North-South scheme does not hold though the European Commission is very frank that this ACTA treaty is mostly about trading it on ‘problem states’.

“Lastly, if anyone tries to back out of the ACTA the excuse will be, “We can’t or there will be sanctions” so that ACTA will be law forever.”

Exactly, I coined it ‘Liquid Concrete’ recently. It cements controversial new standards for a fastly changing digital environment and access to medication ecc., without a proper democratic procedure, without an open and honest debate, without impact assessments and without opt-out options. It is hard to tell what national or European legislators gain from the process other than a loss of flexibility and powers.

Some members of the democratic fractions of parliament, European Peoples Party, Green Group etc prepared a cross-partisan Written Declaration WD 12/2010. So there are now three months for your Member of the European Parliament to sign up WD 12/2010 to preserve the very purpose of their public office in these confidential negotiations. MEPs can sign the written declaration 12/2010 by physically coming to a specific table, near the entrance of the plenary session.

Next week, 22 of March there will be another EU-Commission stakeholder hearing.

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