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Posts Tagged ‘access’

ACTA vs WIPO

From the Google recommended a Washington Post Article from Rob Pegoraro. It remarks:

The fair way to craft a deal like this in the daylight. When the United Nations’ World Intellectual Property Organization proposes to write new treaties, it does so in public, publishing drafts and allowing outside parties to report on the progress of talks.

Of course that also applies to common trade negotiation. The strange aspect of ACTA is that we don’t have public access to the shared documents. But is access to the drafts really necessary?

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Among others German former finance minister MdB Hans Eichel contributes (EICHEL) to the recent EU-Commission DG Market Consultation on hedge funds. What I find impressive is his footer (some edits so he does not get spammed). I wonder if there is a standard for that but don’t they find it risky that their data might end up in a blog with a “call your representative now” request?

[..]
Hans Eichel, MdB

Bundesminister a.D.
Ministerpräsident a.D.
Oberbürgermeister a.D.
_____________________________________
Postanschrift / postal address:
Deutscher Bundestag
Platz der Republik 1
D – 11011 Berlin

Besucheradresse / visitors address:
Paul-Löbe-Haus, Raum X.XX0
Konrad-Adenauer-Straße 1
D – 10557 Berlin

Tel.: +49 (0) 30 – 2X7-749XX
Fax : +49 (0) 30 – 2X7-769XX
Mail: hans.eichel@bXXdestag.de
_______________________________________
Wahlkreisbüro Hans Eichel, MdB
Humboldtstr. 8a
D – 34117 Kassel

Tel.: +49 (0)561 – 9371XX0
Fax : +49 (0)561 – 9371XX2
Mail: hans.eichel@wk.buXXestag.de

Internet: http://www.hans-eichel.de

Wie Sie wissen, können über das Internet versandte E-Mails unter fremdem Namen erstellt oder der Inhalt verändert werden. Aus diesem Grund sind unsere als E-Mail verschickten Nachrichten grundsätzlich keine rechtsverbindlichen Erklärungen. Der Inhalt dieser E-Mail samt Anlagen ist vertraulich und u. U. rechtlich geschützt. Der Inhalt ist ausschließlich an einen bestimmten Empfänger gerichtet. Eine Weitergabe, die Herstellung von Kopien oder der sonstige Gebrauch durch Nichtadressaten ist nicht erlaubt. Ich bitte daher jeden anderen Empfänger, der diese E-Mail ver­sehentlich erhält, mich umgehend zu informieren und die Nachricht zu löschen.

As you are aware, messages sent by e-mail can be manipulated by third parties. For this reason our e-mail messages are generally

Here his contributions stops. DG Market pasted his contribution sent by email into a binary word file. Some persons don’t like these binary formats at all and have access problems or security policies. They become very passionate about using open formats.

Confidential treatment?

The case is also very interesting under the rules of EC/1049/2001 which covers principles, conditions and limitations concerning access to public documents. Usually contributions to consultations are not published when you explicitly request confidential treatment. Basically the footer claimed it was automatically “Der Inhalt dieser E-Mail samt Anlagen ist vertraulich und u. U. rechtlich geschützt.” which a positive declaration of the sender that it was confidential. Did the person who submitted the mail request confidential treatment from the Commission? Does the Article 255 implementation overwrite Mr. Eichels assert that his mail was not solely for the recepient (“Der Inhalt ist ausschließlich an einen bestimmten Empfänger gerichtet”). Is that receipient the general public in case of a public consultation? The footer further says: “Eine Weitergabe, die Herstellung von Kopien oder der sonstige Gebrauch durch Nichtadressaten ist nicht erlaubt.”, making copies would be not permitted. The footer demonstrates why MEP Cashman needs to negotiate with care in the EC/1049/2001 revision process. Would simple copyright ownership overwrite the public access with the new IPR exclusion under Art 4 in the MEP Cashman report? Then public access at large would be void.

In this case the footer is probably just automatically added and Hans Eichel has certainly no intention to ignore the transparency requirements under EC/1049/2001 and hide disclosure of his well-written proposals. As internet users we have to expect that DG Market consulted Hans Eichel before they published it and he did agree with it. The present consultation rules are very good. If you don’t want it to get published it won’t get published.

The use of legal disclaimers written up by some lawyers in a footer invokes the impression that without an explicit disclaimer communication was not to be protected by professional care, when used inflationary it only leads to confusion and with or without a disclaimer lack of due diligence would take effect. It blurs the nature of confidential communication. In the context of a consultation submission it looks contradictory. It leads to uncertainty because in most cases such a footer is automatically added to non-confidential communications.

As the DG Market published his contribution there is no reason to believe they shouldn’t. It is in the public section and it is their responsibility. Yet, as a recepient I have no indication from the document as such that the confidentiality notice was cleared. The Council usually adds a “Public” notice. As a user I didn’t even know a document from “individual” “EICHEL” was from MdB Hans Eichel. Would an internet user regardless of the public accessible status get into legal trouble if he quotes from the contents of the document in a blog? Would a friend to whom a user of their document database forwards the word file falsely believe it was an illegitimate leakage, and how would that reflect on this contacts reputation in terms of confidential treatment of their communication etc. etc.

DG Market put his mail into the CIRCA document repository for everyone on the net to read. What is CIRCA? A very cool document management system. You find it explained by the Commission IDABC.

CIRCA (Communication and Information Resource Centre Administrator) is a simple and effective groupware, developed by the European Commission under the IDA Programme. It is a web-based application providing online services that offer a common virtual space for Workgroups, enabling the effective and secure sharing of resources and documents. Its architecture is based on Open Source Software. It has been widely used by the EU public administrations since 1996. It is also a generic service (including help desk, assistance and training services) operated by the European Commission’s Directorate-General for Informatics (DIGIT) to support the work of the numerous EU committees.

The software is released by the Commission IDABC under the European Union Public License and is also used by German ministries.

All contributions to the DG Markt Hedge Fund consultation can be found here.

UPDATE: The German Finance Ministry submission by Uwe Wewel is as far as I can see fully identical with Eichel’s submission. GZ VII B2 WK6300/06/0001-01. If the text originates in the ministry and Eichel would claim copyright with the disclaimer he probably does not even have any author’s rights in the content. I hope the next Council under the Swedish presidency will dig into the transparency and document access problems and find better rules

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