IDABC Open Source procurement guide

OSOR released the IDABC Guideline for Public administrations on Procurement and Open Source Software (2010). The document release was delayed for almost two years.

Other reports are found on the OSOR.eu website.

Read Full Post »

Criminal provisions ACTA

Criminal law tends to be conservative. Most lawyers share an elitist conception that the legislator shouldn’t unbalance the inner beauty of the inherited statutory law and that popular opinion has to be shielded from criminal law. Otherwise the welfare council leviathan would invent and punish all sorts of crimes to satisfy tabloid media. ACTA negotiators of course seem totally unbound by conservative caution, free to mess trade with our criminal law:

1.35 Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale.36 Willful copyright or related rights piracy on a commercial scale includes:
[(a) significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and
(b) willful copyright or related rights infringements for purposes of commercial advantage or financial gain.37]

37 For purposes of this Section, financial gain includes the receipt or expectation of receipt of anything of value.

There goes the beauty. ACTA negotiators propose a legal ragout. Now, of course these provisions are not news to us. In the current version of the stalled proposed directive on criminal measures aimed at ensuring the enforcement of intellectual property rights, or short IPRED2 you find similar legal definitions, and we have seen all this before in the debate. But there it was political decision making and democratic consensus (or lack thereof in the Council), here trade administrations negotiate.

The term “wilful” is of course derived from TRIPS, the first time a trade related instrument intervened in criminal law to confirm the status quo in penal law. It is important to understand that de minimis has a different meaning in trade than law, meaning an exemption for minor stuff, so I should better say we find ockham’s razor in action:

ARTICLE 61 TRIPS

Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale.

Ha! “commercial scale”, yes, it is debated on and on.

So let’s simplify the ACTA proposal:

[(a) significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and
(b) willful copyright or related rights infringements for whatever purposes of commercial advantage or financial gain.37]

results in

Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy and infringements on a commercial significant scale for whatever purpose or motivation.

Otherwise, why not reconsult what Law Society had to tell about the phrase munging at IPRED2, or what Max-Plank Institute argued:

[EU] harmonisation of criminal penalties can only be justified in relation to acts fulfilling the following elements cumulatively:
– Identity with the infringed object of protection (the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion [construction, assembly, etc.]).
– Commercial activity with an intention to earn a profit.
– Intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right.

Advertisement

Read Full Post »

Targo Bank and the OLPC XO Logo

It took me a bit with surprise, when the Citibank got renamed TargoBank they chose a logo which resembled in large parts the OLPC one for children. You find the logo on each and every OLPC XO.

Here Targo Bank’s registration at the DPMA. I wonder if they cleared any overlapping trade mark rights.

Read Full Post »

ACTA official draft release unveils criminal enforcement revolution

Worst case definition of “commercial scale”, here the TRIPS wording would be replaced by a definition of “indirect motivation of financial gain”. As pointed out, Luc Devigne precisely said in the last hearing that the definition of commercial scale should rest among the courts judges. However, criminal provisions are negotiated by the member states:

ARTICLE 2.14: CRIMINAL OFFENSES
1.35 Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale.
Willful copyright or related rights piracy on a commercial scale includes:
[(a) significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and
(b) willful copyright or related rights infringements for purposes of commercial advantage or financial gain.]

Inciting, aiding

Inciting, aiding and abetting are still included in the criminal enforcement chapter:

[2.15]
[2. Inciting, Aiding and Abetting
The provisions of this section shall apply to [inciting,] aiding and abetting the offences referred to in Article 2.14.]]39

Read Full Post »

Hacker ethics and liberalism

Gabriella Coleman did some research on the matter, here are her publications.

Read Full Post »

Gary Shapiro on ACTA

Interesting comment in Forbes.com:

The fact that you know little or nothing about ACTA is not coincidental. Supporters of this unwise agreement know that if it were exposed to the light of day, consumer outrage would stop the agreement from becoming law.

A strong, yet simple statement. But is is really true that lack of transparency and openness stifled ACTA progress. I would rather argue that semi-transparency fuels curiosity to connect the dots and raises awareness.

Read Full Post »

The EU negotiating mandate for ACTA

1. The Fish mandate (“SEC(2007) 1377”): The European Commission sent a draft recommendation to the Council to authorize the Commission to negotiate ACTA. Yes, they wrote their own negotiating directive. The infamous “Article 133 group” had it on their agenda, (the Commission was forced to provide a new proposal for a negotiating mandate cmp 2.)), then the Presidency presented a “compromise” which was rubberstamped by the Art 133 group, Coreper-2 and finally adopted via the Fisheries Council without discussions (14 April 2008).

2. The Commission was forced to present a revised recommendation for the negotiations mandate of ACTA (“SEC(2008) 255”). The Council reveals:

To obtain the Council’s agreement for the negotiation by the Commission of an agreement to improve the enforcement of intellectual property rights. This is a revised version of the negotiating guidelines adopted [by the Commission?] as SEC(2007) 1377, on 23 October 2007. Since the adoption of the recommendation, Member States asked the Commission to revise three aspects. The negotiation process with other ACTA partners has started and, until it has received its negotiating guidelines, the Commission services are participating in “silent mode”

4. Negotiating directives are kept secret, all the adopted versions and the drafts. Ironically a final SEC(2007)1377 final is dated 7.8.2008 and SEC(2008) 255 final 21.8.2008

5. Disclosed is currently only the explanatory memorandum of these documents, here is the diff:

“ACTA’s enforcement measures will apply, at least to those IP rights covered by Part III (Enforcement of IPR) of the TRIPs Agreement. However, it is not foreseen to include in the scope of ACTA any rules regarding the substantive protection of intellectual property rights.”

It lacks legal clarity because PART III of TRIPS does not define any rights.

6. Judging from the linguistic evidence the negotiating mandate was probably drafted by a Spanish national.

7. As the document was channeled via the Article 133 committee, that article of the treaties seems to be the relevant legal base, fishy again. Here the Nice Treaty version, of course the Lisbon treaty changed the situation, here it is Article 207 TEU.

8. The explanatory memorandum is a bit “freaky”, e.g.

“It is important for the European Union to be at the forefront of efforts to improve IPR enforcement and to work with other partners to make them as effective as possible. It would be politically damaging to do otherwise. Joining the ACTA negotiating process will send a strong message of our concern for the key competitiveness tool that is IPR. But, more importantly, it will have positive effects on the situation in the field, resulting from the increased level of cooperation between enforcement authorities and from the harmonised high standards of IPR enforcement.

…without effective means of enforcing intellectual property rights, innovation and creativity are discouraged and investment diminished. It is therefore necessary to ensure that the substantive law on intellectual property, which is nowadays largely part of the acquis communautaire, is applied and enforced effectively internationally.

Here comes the technical problem: when external enforcement of territorial rights was the core objective how does it work technically? Time to dig into Article 207 TEU and related provisions.

Read Full Post »

The TRIPS fake adoption of the EU

You may ask yourself how the EU can be party of the TRIPS agreement which comprises de minimis criminal sanctions and much more when many of these issues are not part of the EU acquis. It may surprise you:

94/800/EC: Council Decision (of 22 December 1994) concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994)

Article 1

1. The following multilateral agreements and acts are hereby approved on behalf of the European Community with regard to that portion of them which falls within the competence of the European Community:

– the Agreement establishing the World Trade Organization, and also the Agreements in Annexes 1, 2 and 3 to that Agreement;

– the ministerial decisions and declarations and the Understanding on Commitment in Financial Services which appear in the Uruguay Round Final Act.

2. The texts of the agreements and acts referred to in this Article are attached to this Decision.

3. The President of the Council is hereby authorized to designate the person empowered to take the measure provided for in Article XIV of the Agreement establishing the World Trade Organization in order to bind the European Community with regard to that portion of the Agreement falling within its competence.

What does it mean for the Anti-Counterfeiting Trade Agreement and Trade policy? As simple as that, unlike the Commission DG Trade assumes it lacks competence for many TRIPS (annex 1C) matters. Community competence always overrules a larger TRIPS scope according to 94/800/EC.

What does it mean for ACTA

SEC(2007) 1377:

4. At international level, all Member States, as well as the Community itself as regards matters within its competence, are bound by the Agreement on Trade-Related
Aspects of Intellectual Property (the TRIPS Agreement), approved, as part of the multilateral negotiations of the Uruguay Round, by Council Decision 94/800/EC(3) and concluded in the framework of the World Trade Organisation (WTO).

With other words, not only lacks the Commission competence to negotiate penal sanctions because IPRED2 is not adopted, it also cannot base any competence claims on the TRIPS agreement. It seems certain, “hereby approved… portion of the Agreement falling within its competence” means “back in 1994… portions of TRIPS falling within those EC competence in 1994”. The “in 1994” is however omitted by the Commission. Even for IPRED1 and the customs regulations, concluded much later, which are part of the acquis TRIPS only appears to bind the members states.

Very interesting in the context of the customs regulation review, a pretty strange consultation seeking to put the customs regulation in line with TRIPS. It has to be demonstrated first that TRIPS is applicable for the Commission and if so, it seems riddiculous to base a customs review on TRIPS given that TRIPS was in place in 2003. The sole purpose of the consultation is to bring the acquis in line with the proposed ACTA measures, in particular anti-free trade protection such as geographical indications..

Read Full Post »

The fishy mandate of ACTA

So here we have it, not “12 April 2008” and not “Competitiveness Council” but the infamous Fish: The negotiating mandate for the Commission for the ACTA agreement was on the agenda of the

2862nd meeting of the COUNCIL OF THE EUROPEAN UNION (Agriculture/Fisheries) date : Luxembourg, Monday 14 April 2008

List of “A”-items:

7. Recommendation from the Commission to the Council to authorise the Commission to open negotiations of a plurilateral anti-counterfeiting trade agreement
7759/08 WTO 49 PI 15 UD 48 MI 101 JUSTCIV 56 COPEN 52 DROIPEN 29 RESTREINT UE
approved by COREPER, Part 2, on 02.04.08

“A”-Items are adopted as they are without further deliberations.

(DROIPEN is the notified Substantial Criminal Law Working Committee, “Restreint ue” meant the dossier was classified. The only “classified fish” on the Fishery Council and Coreper agenda.)

Backtracing the Fish

As we can see it was earlier “approved” by Coreper, part 2. Coreper is the Committee of Permanent representatives in the Council, our diplomates.

2222nd meeting of the PERMANENT REPRESENTATIVES COMMITTEE (Part 2)
…

31. Recommendation from the Commission to the Council to authorise the Commission to open negotiations of a plurilateral anti-counterfeiting trade agreement
7759/08 WTO 49 PI 15 UD 48 MI 101 JUSTCIV 56 COPEN 52 DROIPEN 29 RESTREINT UE

Backtracing the Fish II: Article 133 Committee

And here is document from 26 of March coming from the Article 133 Committee, it explains:

The Commission submitted on 20 November 2007 a Recommendation from the Commission to the Council to authorise the Commission to open negotiations of a plurilateral anti-counterfeiting trade agreement. A revised version of the Recommendation was submitted to the Council by the Commission on 29 February 2008.

In other words the negotiating mandate was written by the Commission for the Council. They even had to amend their initial proposal, the Article 133 committee then adopted a “compromise proposal” from the Presidency:

The Recommendation was examined by the Article 133 Committee (Deputies) at several meetings. The Recommendation was also examined by the Working Party on Intellectual Property. Following the discussion at the meeting of the Article 133 Committee (Deputies) on 17 March 2008, all delegations could agree on the text on the basis of a compromise proposal by the Presidency.

and this “compromise proposal” was then sent via the adoption road:

It is therefore suggested that the Permanent Representatives Committee invite the Council, as an “A” item at a forthcoming meeting, to:
• authorise the Commission to negotiate a plurilateral Anti-Counterfeiting Trade
Agreement;
• OT DECLASSIFIED
• appoint relevant committees to assist in this task;
• issue the appended negotiating directives OT DECLASSIFIED

Negotiating Directive

We can’t observe the negotiating directives because it is classified. But what we find are declassified snippets from their adopted negotiations mandate, the SEC(2007) 1377’s explanatory memorandum.

Read Full Post »

Criminal sanctions in ACTA and the NIT procedure

The new service IP Watch features an opinion piece from Lassi Jyrkkiö who digs into the penal sanctions technical problem underlying the Anti-Counterfeiting Trade Agreement (ACTA):

“Yet apparently, as the Commission’s chief negotiator Luc Devigne stated – or let slip – on a hearing on 22 March, their perception is that: “We [the EU] have no acquis” on the matter.”

You can’t argue about facts. “Acquis” means the corpus of harmonized EU legislation. The Commission lacks competence when it is not in the acquis. The question was how penal sanctions can be negotiated when the Commission has no competence. I already asked that to Devigne during the first stakeholder meeting. Ever since the inclusion of criminal matters remains a procedural miracle.

Of course maybe some persons thought a competence could be provided ex post, by adoption of the wrecked IPRED2. Under the French presidency a modus was invented in which some member states participate in the negotiations. We may call it the NIT legislative procedure, for “not in the treaties”, where the governments act as sovereign powers like in the good old days. Of course a slight provocation to the Lisbon-regime EU-Parliament, Strasbourg won’t like it. Article 207 TEU. Let me quickly make up a few technical questions: How can e.g. one member state as a sovereign power be legally represented by a delegate from another member state? Do the French really agree with an English-only regime? etc. Cast light on it and it fades to dust.

One recent suspicion was that they at the Commission don’t fully get what “within the acquis” means. Trade Commissioner De Gucht for instance said in the Plenary they won’t go beyond the acquis and then mentioned related criminal law “which by the way is not yet adopted”. If it is not adopted it can’t be in the acquis.

Furthermore Luc Devigne explained at the stakeholder hearing that they won’t go beyond the acquis of existing legislation, and he was incompetent to speak about penal sanctions which are negotiated by Council. Actually, everything beyond the acquis exceeds their competences. So “we will not go beyond the acquis” means nothing. Then there is the infamous “negotiating mandate” from the Council, it is not available, most likely prepared by the Commission and according to rumours silently adopted without consultation of the competent IPR committee via the Trade committee of the Council, then rubberstamped in the Competetive Council Meeting (12 April 08?? – need to check) without further discussions. Again, according to rumours amateurish aspects of the mandate were then somehow sanitized under the French presidency…

At the 22 March stakeholder hearing Trade negotiator Luc Devigne from the Commission finally confirmed that Penal Sanctions are negotiated by the Council. The Council has not explained yet how the NIT legislative procedure works nor does the Commission. Members of the European Parliament seem to be very curious to find out. Because a NIT legislative procedure precedent would enable the Council to circumvent their Lisbon rights.

Ante Wessels stressed in a recent press release that the idea for a governance body able to amend ACTA would even go beyond the NIT escapism:

“Dedicated organisations tend to become champions of their speciality. Strong external checks and balances are needed to counter that. With ACTA, we rather seem to witness a deliberate attempt to create a captive in-crowd.”

I would argue, as the Commission does not care for technicalities, the technicalities would wreck the agreement as many other better focused, less complicated and more advanced attempts for single market regulation before. All players are now able to play shooting gallery and raise all the technicalities. Some persons may decide to save ACTA but others would be wise to leave the sinking ship.

Others may find the ACTA albatross useful for a consultation by the ECJ or reviving IPRED2, the criminal sanctions directive, and reopening customes regulation (revision underway). It is also fascinating as a subject matter for a student willing to write his or her phd in European and international law.

Read Full Post »