ACTA referral, here you are

So that’s the question from the Commission to the European Court of Justice:

“Is the Anti-Counterfeiting Trade Agreement (ACTA) compatible with the European Treaties, in particular with the Charter of Fundamental Rights of the European Union?”

Too short? You can’t ask another question under Art 218(11) TFEU. Interestingly the EU Commissioner didn’t publish the referral notice.

Read Full Post »

The Avaaz Petition on ACTA and the Commission campaign

I haven’t signed the Avaaz Petition on ACTA (because I find it exaggarated) but 1.3 Mio citizens have:

As concerned global citizens, we call on you to stand for a free and open Internet and reject the ratification of the Anti-Counterfeiting Trade Agreement (ACTA), which would destroy it.

The Commissioner responsible, Mr. Karel De Gucht, undertook an effort to answer the storm of public attention and delivered an equally distorted propaganda message to debunk the public concerns expressed by citizens of the European Union. See also the new website created as a response.

However, the agreement – while not being a SOPA cousin – has direct impact on the internet.

Commissioner De Gucht earlier responded to the European Parliament:

“ACTA will indeed impose obligations with respect to the internet because of its growing importance as a means of IPR infringement. The multilateral legal framework, and namely the TRIPs agreement, was negotiated before the expansion of the internet, and it therefore lacks the minimum standards to address such problems. It is important to have an international instrument setting out a framework for addressing this type of infringement in order to make sure that international partners have the same level of protection of IPRs that the EU currently applies, with all the due guarantees provided by its acquis. Since internet content flows freely across borders, a minimum set of internet enforcement rules will allow the EU right-holders to have their intellectual creations respected in third countries and, in the case of infringements, will equip them with legal measures to defend their assets.”

Unbearable lines are now cemented, for instance it is claimed by the Commission (as well as a  few member states and the mediocre lobby support) the agreement…

• No changes: … would not require any changes to EU laws.
• Large scale: … was only directed at large-scale action
• Transparency: .. was negotiated as usual. The EU Commission was utmost transparent during the negotiations and informed Parliament.
• Balance: …”contains the necessary safeguards to allow the participating countries to strike an appropriate balance between all rights and interests involved”
• No forum shopping: …does not lead to “harmonisation through the backdoor”.

I doubt it would be possible to defend these lines.

The French citizen advocacy group La Quadrature denounces them as outright “lies”. I wonder why Commissioner De Gucht intervenes at all into public discourse, outreaches to parliament and makes a partisan argument. I doesn’t suit the dignity of the Commission well to argue, the Commission which did very little to resolve what she was actually asked for by Members of Parliament. The proactive partisan defense of the Commission reveals that the agreement is driven by mere administrative activism, not industry demand.

Read Full Post »

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.

Read Full Post »

Social Democrat group concerned about De Gucht’s ACTA transparency

The Social Democrat group

Mr De Gucht today held a one-hour discussion with members of the Committee on Civil Liberties, Justice and Home Affairs at the European Parliament. But S&D MEPs said there could be no serious debate since members do not know the content of the negotiations.

EP vice president and S&D member Stavros Lambrinidis said: “It is unacceptable that the latest document is not available for this debate and that it will be accessible only at a later stage in a closed room. It was therefore impossible for us to have a serious discussion about the state of the play on ACTA negotiations.

“The European Parliament has co-decision powers for trade agreements and it should be informed at all stages of the negotiation. If the negotiators have nothing to hide, they should have nothing to fear about making the document available to the public.”

Dutch Vrijschrift added an allegation of ‘misinformation’:

The European Parliament LIBE committee ACTA hearing last Tuesday took an unexpected turn when Commissioner De Gucht said that there will not be a definition of commercial scale in ACTA. Member of Parliament Lambrinidis then asked for confirmation that the definition was out. De Gucht confirmed this. […]

Since then, the new text leaked. This text does contain a definition of commercial scale on page 15. […] In fact, the bracketed text shows the EU contributed to the new definition.

Read Full Post »

EU-INDIA policy laundry or: ACTA as it was meant to be

Mayday! (doom mongering)

It is may. Mayday for democracy and internet freedoms. I just stumbled upon a weird document. I have no idea where the released document originates from, if its an authentic governmental negotiations document release, no reason to dispute that, have a look, simply outrageous. According to the URI it was put online only this month by Techrights.  Recently I often mentioned the Anti-Counterfeiting Trade Agreement (ACTA), a plurilateral IPR agreement negotiated by some industrialized nations.  The ACTA drafts are a harmless Nagasaki-style menace compared to the H-Bomb-style proposal, a EU-India ipr agreement draft document. Appears to be part of a “dooms day machina” for democracy.

EU-India and the ACTA wolf

To me the document lets you view an evil wolf behind the ACTA, less window dressing, less constraints, focus on substantive law, not just on enforcement, what EU trade administration really had in mind before ACTA was publicly exposed. ACTA is dramatized by NGOs into an attack on the internet. Others criticise a lack of transparency. ACTA deserves better public scrutiny. It is not at all an internet agreement, it affects e.g. access to pharmaceuticals for developing nations.  With so much public awareness cast on ACTA an institutional aspect is hardly understood: The Anti-Counterfeiting Trade Agreement (ACTA)  is parallelized by bilateral trade talks with so called “problem countries”, among them India with its strong generic pharma industries, but also Korea and others. The bilateral agreements are negotiated by virtually the same few persons responsible for ACTA. EU-India is bilateral, two negotiating parties: EU (trade department) and India (trade department). It is far easier to negotiate bilateral agreements than plurilateral agreements, and certain dangers stem from that.

Backroom deals for billions of people

For European citizens the domestic effects of a “bilateral agreement” are exactly the same as of a plurilateral or multilateral one.[*]. Trade negotiators negotiate, legislators are asked to rubber stamp [+]. Provided the measures don’t get rubberstamped via ACTA (because parliament spotted it) administration can try again with bilaterals as EU-Korea, EU-India, EU-China, EU-Switzerland, EU-Bahamas, EU-Fiji, EU-Tschingbimbistan. While ACTA receives a lot of attention now (“light” which puts an end to the vampires, as J. Zimmermann of Quadrature coined their advocacy method), EU-India does not attract much debate and attention. An agreement which affects the legislative environment for billions of people, with no turning back.

With teeth

For EU anti-internet backdoor laws you don’t need ACTA, EU-India is sufficient to get criminal sanctions (Art 34), ISP liability (Art 35) and border measures (Art. 36), DRM protection and lots more. Of course all this is not in the existing EU legislation (“acquis”) . As an oddity the Techright document also refers to the idiosyncratic EU database copyright, an EU legislative failure as the Commission admitted in its policy review. The proposal exports these rights to India, too.

When Parliament insisted on internet freedoms for ACTA and rejected the three strikes proposals, the Commission pretended no one’s ever proposed that, the Commission publicly attacked those who mislead made the representatives aware of it. What we find in the EU-India document is an impression of ACTA as it was meant to be.

No one depends on ACTA

When the interested public and Parliament fails to spot undesirable measures in ACTA (cast light on it) we’ll get it anyway, sneaked through a bilateral route, because Commission trade specialists want it so. Domestic effects of institutional activism and forum shopping. The process demonstrates us how trade policy severely undermines parliamentarian democracy when trade administration steps into merely regulatory matters, legislation not trade. I hate to admit that but maybe the globalisation critics were right with their fierce criticism of the EU- “Global Europe” strategy spirit.

More EU-India

As I wrote above, I cannot confirm if the document was authentic but I found some background documents:

• EU-Commission’s press release about these negotiation (2007):

“On 28th June 2007, the EU and India began negotiations on a broad-based bilateral trade and investment agreement in Brussels, Belgium.”

• Commissioner De Gucht speech 4 Jan 2010: “We must complement the multilateral system by strengthening key bilateral and regional relationships. This is because bilateral agreements can go further and faster in promoting openness and integration, by tackling issues which are not ready for multilateral discussion and by preparing the ground for the next round of multilateral negotiations. Many key issues, including investment, public procurement, competition, intellectual property, …, can be addressed in such agreements. This would mean concluding Free Trade Agreements or similar types of agreements with amongst others India, ASEAN countries, Ukraine, Canada, Euromed, but also Mercosur.”
• Commissioner De Gucht about the agreement, Indian television, mentions the need to address “non-trade issues”. In his mind the term comprises issues like “Climate Chance” and “Human Rights” [x] but IPR aspects in the TechRights document are also not trade-related but legislative.
• Aid agencies on EU-India: Aids, not internet, EU-India may hinder access to essential medicines: “In recent years, India has become “the pharmacy of the developing world”. Ninety-two percent of people living with HIV on treatment in low- and middle-income countries currently use generic antiretrovirals (ART), mostly manufactured in India.”

[+] Commissioner De Gucht in Frankfurter Allgemeine stresses that Parliament’s role is just approval and assumes institutional legitimacy for the Commission like in a nation state: “In einer Demokratie muss das Parlament bei der Handelspolitik mitreden. Auf der anderen Seite muss klar sein, dass nicht das Parlament die Verhandlungen mit unseren Handelspartnern führt, sondern die Kommission. Das Parlament wird über den Fortgang der Verhandlungen informiert und kann dann am Ende “ja” oder “nein” sagen, mehr nicht. Das ist bei internationalen Verhandlungen in allen Staaten[!] so.”

[x] A classic Red Herring power technique, in order to avoid procedural criticism, that a trade process relates to non-trade issues, they shift the debate to other non-trade policy issues which are expected to be backed by potential opponents of the agreement.

[*] Bilaterals are a dangerous “policy laundry” road for our nascent EU parliamentarian democracy.

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 »

Negotiator Devigne and DG Trade’s ACTA anarchism

Journalist Monika Ermert provides a wrap-up of the ALDE hearing on ACTA for IP-Watch. Let me share my thoughts on a few other impressions from the April hearing on ACTA by the liberal group, organised by MEP Marietje Schaake (D66) and MEP Alexander Alvaro (FDP) (partial video recordings on youtube):

Servants and masters

When you have a servant you basically want him to obey his master (“you”) without the need for explicit orders and surveillance. When you are forced to give orders you don’t expect your servant to explore all means to circumvent or even oppose your will; you expect him to execute your will and act in accordance with your guidance. This applies to public servants at the European Commission as well. Usually persons in administration restrain themselves but trick a bit. Quite the opposite with DG Trade staff, they act against that rule and push everything to the max, driven by a kind of administrative activism.

What do I mean in the context of ACTA?

I am wondering who actually requested or mandated the EU negotiator to challenge the parliament or the legal base? Why does DG Trade follow an interpretation of the Parliament resolution that seems out of line with the resolution text? The resolution asked to limit ACTA to counterfeiting cases: the alternative interpretation of DG Trade is unsupported by the persons who drafted the resolution, not backed by anyone in Parliament. Did the new EU-Commissioner De Gucht endorse that an EU trade negotiator negotiates with the competent domestic legislator and democratic scrutinizer? I doubt so.

Maximalism

It is the one dimensional “maximalist attitude” which regards politics, legal technicalities, competences, balances, mandates, concerns as simple constraints to be pushed to their limits, because what matters is only your ultimate objective, maximum enforcement. You see the same strategic approach in the broadening of the agenda to include non-counterfeiting, all sorts of diverse rights and controversial legal tools. That ambition broadens also the alliance of its opponents and endangers consensus. Thus my bet that ACTA would “go nowhere”.

What fascinated me about ACTA from the very start of the process, the way in which the Commission brushed away all the technical difficulties, complicated technicalities that were so challenging in the previous ipred2 criminal sanctions process and the ipred1 debate. Unlike IP professionals and scholars they don’t care for the overall legal architecture. They would even call for the provision of “death penalty” for “suspected” counterfeiters and the only thing to hold them back would be the system of law&order, and fundamental rights including the European prohibition of death penalty, so they could not go for that.

My example isn’t as absurd as it may appear. Ironically, maybe without noticing what she called for, an Ebay representative once suggested the physical elimination of counterfeiters in a parliament hearing organised by MEP Mme Herczog, to “take them also off the offline world”. At the same meeting her colleague Arlene McCarthy (uk labour) made a crazy “direct link” between drug dealers, gun crime, child abuse websites, ip infringers and terrorism and called on the ISPs to stick to their “social responsibility” and filter the net. Most famous became the “three strikes/graduated response” idea in the context of ISP liability, language originating from military escalations and draconic penalty laws from the US for repeated offenders.

Three strikes

Net filtering isn’t very popular these days. Particularly relevant in the ACTA context are the controversial “three strikes” policies which lack political backing in Europe, quite the contrary now. At the ALDE hearing the trade negotiator had to admit that they would support non-mandatory recommendations / elements to this end as part of ACTA, because non-mandatory schemes would not change the acquis (Acquis, that is the corpus of existing legislation). I was very impressed. That was huge and I am not sure everyone in the room got the joke. As I don’t care much about the substance of ACTA but more the “technical” side, I was very amazed that they would attempt to slip through that loop hole. Quote:

You may call me a liar [hehe] but that is very clearly the Commission’s position and I will stand by it.

You see, the Commission staff in a harlekin role, kind of funny. At the stakeholder meeting 22 March a support for “three strikes” was still denied (which of course no one believed). There the same person still replied to Mr. Zimmermann it “won’t be induced neither”. A representative of internet provider XS4ALL was smart enough to think about a loop hole, almost like a bunny making friends with the snake, she asked if it “was hard” for the negotiator to get the “three strikes” out at the negotiations table with third nations (because when it is not in the “EU position” it can be played via other parties at the table and end up in the final text). “No one’s ever propose that”, was the answer of the negotiator, three strikes was “no one’s idea”. Rather a surprise given that it is a European idea, and they talked a lot about those graduated response options abroad.

The question remains unanswered who ever requested the EU-Commission to make (formal and informal) proposals or suggestions to trade partners towards this end? Who is actually put in charge here? You cannot expect Parliament to close all possible loopholes of a negotiating position which is not in line with its democratic will.

There is a great legend around the executioner Rosenfeld who killed captured Klaus Stoertebeker and all his fellow victual broethers (pirates) one by one. When he was mentioned by the Hamburg Senate for his dirty work he replied that it wasn’t a big deal for him, he wouldn’t mind the effort to let the members of senate follow in the line. The Senate didn’t feel comfortable with his bloodthirstiness and decided to put him to death.

Read Full Post »

ACTA, Acquis, criminal sanctions

From an US NGO source:

KEI has learned that the European Union has proposed language in the ACTA negotiations to require criminal penalties for “inciting, aiding and abetting” certain offenses

As long as criminal provisions are not in the Acquis (as IPRED2 is not adopted) the European Union has no competence to make such proposals in international fora. Period. Commissioner de Gucht additionally promised Parliament they would not go beyond the acquis but apparently still holds some misconceptions what the acquis is about. It is very simple, as long as Ipred2 is not adopted there is no criminal law for these purposes in the Acquis, thus the EU has no competence whatsoever. If the Commissioner exceeds his competences in the negotiations expect a strong political confrontation and litigation before the European Court of Justice.

Luc Devigne from the Commission reportedly said in a meeting with the EPP staff, he has been working as a trade negotiator for the Commission for 15 years and was never scrutinized by parliament before. That whispered joke indicates the difficulties of a Commission unaware of the treaties it is supposed to defend as its guardian, now exposed to a stronger Lisbon regime Parliament. The support for the mostly EPP driven written declaration by other parties is stunning. Over night the conduct of Office from DG Trade became a cross-partisan concern.

Read Full Post »