David Martin and the straw man about boarder searches in ACTA

This morning in Parliament, INTA committee MEP David Martin (rapporteur) iterated the claim there were no searches of individuals at the customs in ACTA. Indeed, the EU-Commission invoked the impression several times. But it is misleading.

Let’s read the text:

ARTICLE 14: SMALL CONSIGNMENTS AND PERSONAL LUGGAGE
1. Each Party shall include in the application of this Section goods of a commercial nature sent in small consignments.
2. A Party may exclude from the application of this Section small quantities of goods of a non-commercial nature contained in travellers’ personal luggage.

“Exclusion” legally means, it’s not in, or it is ruled out from the scope of the agreement. “May” indicates a so called flexibility, here further limited to “goods of a non-commercial nature”.

As a side note, I don’t care if ACTA leads to customs searches of individual passenger. Just keep the facts straight. Even 2008 it was a straw man of the Commission to claim there were these “false allegation” on “ipod searches” floating around.

In fact, I never read these article about iPod searches at the customs or heard an advocacy group in Europe to make that consumer case. I only heard about the straw man of the ACTA defenders that there were these “misconceptions” of critics, even at times when ACTA was yet in a preparatory phase. Actually, as you see from the text, it wouldn’t even be even a misconception though it is a side topic. A distraction.

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Where are ACTA’s “political corruption” provisions gone?

The July versions of the Anti-Counterfeiting Trade Agreement draft included political corruption measures in Article 3.3. to promote adhesion of prospecting nations to the agreement. The latest version of the draft Article 3.3 looks different:

ARTICLE 3.3: TRANSPARENCY/PUBLICATION OF ENFORCEMENT PROCEDURES AND PRACTICES
For the purposes of promoting transparency in the administration of its intellectual property rights enforcement system, each Party shall take appropriate measures, pursuant to its domestic laws and policies, to publish or make available to the public information on:
(a) procedures available regarding the enforcement of intellectual property rights including competent authorities for enforcement of intellectual property rights and contact points for assistance;
(b) relevant laws, regulations, final judicial decisions and administrative rulings of general application pertaining to enforcement of intellectual property rights; and
(c) efforts to ensure effective enforcement and protection system of intellectual property rights.

ARTICLE 4.3 is the new Article 3.3

At first sight the provisions seem gone in the 25 Aug draft. But now consider Article 4.3 where we find the political corruption measures in their diplomatic beauty:

ARTICLE 4.3: CAPACITY BUILDING AND TECHNICAL ASSISTANCE
1. Each Party shall endeavor to provide on request and on mutually agreed terms and conditions, assistance in capacity building and technical assistance in improving enforcement of intellectual property rights for Parties to this Agreement and, where appropriate, for prospective Parties to this Agreement. Such capacity building and technical assistance may cover such areas as:

(a) enhancement of public awareness on intellectual property rights;
(b) development and implementation of national legislation related to enforcement of intellectual property rights;
(c) training of officials on enforcement of intellectual property rights; and
(d) coordinated operations conducted at the regional and multilateral levels.

2. For the purposes of paragraph 1, each Party shall endeavor to work closely with other Parties and, where appropriate, countries or separate customs territories not a Party to this Agreement.
3. Each Party may undertake the activities described in this Article in conjunction with relevant private sector or international organizations. Each Party shall strive to avoid unnecessary duplication of the activities described in this Article with respect to other international efforts

Article 4.3 a) apparently overlaps with 3.4, which demonstrates us the remaining immaturity of the 25 August draft: In Article 3.4 we find provisions for moderate participation in public opinion building, of course a deviation from the principle of normative individualism:

ARTICLE 3.4: PUBLIC AWARENESS
Each Party shall, as appropriate, promote the adoption of measures to enhance public awareness of the importance of respecting intellectual property rights and the detrimental effects of intellectual property rights infringement.

Political Corruption decoded

In a public discourse it is common that angry crowds describe their governments as corrupt, swear on their government policies. That is not what I am talking about here. That would be emotional ranting but not actual political corruption. The case here is different, and  it is a clear case. The language was largely borrowed from the so-called development agenda process at WIPO.

Article 4.3 is a blueprint for political corruption.

• ‘Technical assistance’ for ‘development and implementation of national legislation related to enforcement of intellectual property rights’ is a diplomatic cover-up term for imposition of laws.
• ‘Capacity building’ means bribes and
• ‘enhancement of public awareness on intellectual property rights’ undue interference in the inner affairs of other states by means of propaganda.

Political corruption is subject to international and regional regulations which mostly stem from the United Nations Charter Article 2 fundamental principle, political independence of a state. The Council of Europe Criminal Law Convention on Corruption Article 6 mandates contracting states to establish political corruption as a criminal offence under domestic law when involving any person who is a member of any public assembly exercising legislative or administrative powers in any other State. Precisely, when committed intentionally:

the promising, offering or giving by any person, directly or indirectly, of any undue advantage to any of its public officials, for himself or herself or for anyone else, for him or her to act or refrain from acting in the exercise of his or her functions.

and

the request or receipt by any of its public officials, directly or indirectly, of any undue advantage, for himself or herself or for anyone else, or the acceptance of an offer or a promise of such an advantage, to act or refrain from acting in the exercise of his or her functions.

Exactly that is what “technical assistance” and “capacity building” is about. These legal principles against corruption make sense. It is not upon us to participate in “development and implementation” of national laws by non-domestic legislatures or interfere otherwise in the inner affairs and political deliberations of those nations. I would like to see that fundamental principle preserved.

Commissioner de Gucht raises “public awareness”

Commissioner Karel de Gucht who bears the political responsibility for the ACTA process on behalf of the European Commission currently makes headlines in European mainstream news media with his antisemite remarks. It is likely that his current scandal would overshadow the ACTA deliberations in the European Parliament.

Wednesday, 8 September 2010 Final draft agenda 39k
09:00 – 11:50 Debates
Conclusions of the special ECOFIN Council meeting of 7 September
Protection of animals used for scientific purposes
Elisabeth Jeggle A7-0230/2010
Ongoing negotiations on the Anti-Counterfeiting Trade Agreement (ACTA)

I sincerely hope de Guchts media scandal won’t distract from the need to pay close attention to the radical and revolutionary policy proposals of the ACTA process driven against the ordinary democratic process in the participating nations. Contrary to popular opinion “ISP liability” is just one small item on the maximalist negotiations table.

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No ACTA from the Swedish Presidency for me

The General Secretariat has weighed my “interest in being informed of progress in this area against the general interest that progress be made in an area that is still the subject of negotiations”… “As there is no evidence suggesting an overriding public interest to warrant disclosure of the document in question, the General Secretariat has concluded that protection of the decision-making process outweighs the public interest in disclosure.”

View this document on Scribd

I wonder if I should write a confirmatory application. In particular it seems that the person who wrote the letter was not very experienced with EC/1049/2001 applications.

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More ACTA insights

From a Council document 13 February 2009 which was declassified:

VI. THE DRAFT ANTI-COUNTERFEITING TRADE AGREEMEMT
23. Since 2007, four negotiation rounds have taken place on an Anti-Counterfeiting Trade Agreement. The last one was held in Paris in December 2008 and should be followed by a round scheduled in March 2009 in Morocco.
24. This agreement should cover mainly the following aspects:
(a) general provisions and definitions,
(b) institutional issues,
(c) border measures,
(d) international cooperation,
(e) Internet,
(f) criminal enforcement, and
(g) civil enforcement.
25. As regards civil enforcement issues, the Community endeavours to reach an agreement which would provide added value to the Agreement on Trade-Related Aspects of Intellectual Property Rights and which would follow the logics of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights.

26. In particular the Community’s objectives are:
– to ensure that the text applies to every type of intellectual property rights;
– to impose compensatory damages rather than punitive damages; and
– to ensure that right holders may apply for an injunction against intermediaries.
27. The Committee on Civil Law Matters should keep the negotiations on this Agreement under consideration, in particular as regards its aspects relating to civil enforcement.

Also this ACTA-document is “declassified”, the mandate for the Commission to negotiate from the 133 Committee but without the relevant part, so the “unprecendented secrecy” of the EU in the matter continues.

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