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.

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Commission seizes power to adopt certain measures blink-blink

Something from the Trade Committee INTA of the European Parliament.

Amendment of certain regulations relating to the common commercial policy as regards the procedures for the adoption of certain measures – PE 478.430v01-00 – Committee on International Trade

I have no idea what that is about, but it seems important. And in fact it is, the amendments concern “delegated acts”, where the Commission could take regulatory action without prior consultation of the legislator. We really should really look up Article 270 of the Lisbon Treaty regime…

When you want to raise attention, just blink: “certain measures”, how riddiculous!

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Die deutsche Euro-Blogosphäre

Europaeum.eu Blog listet unglaublich viele Europa-Blogs deutscher Autoren auf. Mich findet man alphabetisch zwischen MEP Reinhard Bütikofer und RandomInsights aus Österreich (sehr “idiosynkratisch”), in der Liste viele Bekannte und Unbekannte.

Aber 55 deutschsprachige gesammelte Blogs sind viel zu wenig für unser Projekt Europa der Bürger. Zusammen mit ein paar Kollegen bereiten wir gerade sehr konkrete Lösungen in Sachen “Brüssel Bubble-gum” vor. Es ist Zeit an der Wurzel anzusetzen.

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K.T. zu Guttenberg, CSIS, No Disconnect Strategy

Former German defense minister Karl Theodor von und zu Guttenberg serves as a lobbyist for the CSIS, a Think Tank in the United States. Today EU-Commissioner Neelie Kroes launched an initiative with him to help net dissidents abroad. Let me quote from the press release:

Karl-Theodor zu Guttenberg will liaise with Member States, third countries and NGOs which are committed to work in this area and advise on how to advance the strategy in a co-ordinated and effective manner.

The “No Disconnect strategy” will assist people in four ways:

Developing and providing technological tools to enhance privacy and security of people living in non-democratic regimes when using ICT.

Educating and raising awareness of activists about the opportunities and risks of ICT. In particular assisting activists to make best use of tools such as social networks and blogs while raising awareness of surveillance risks when communicating via ICT.

Gathering high quality intelligence about what is happening “on the ground” in order to monitor the level of surveillance and censorship at a given time, in a given place.

Cooperation. Developing a practical way to ensure that all stakeholders can share information on their activity and promote multilateral action and building cross-regional cooperation to protect human rights.

The heated press conference (on video) indicates how her choice completely distracts from the substance of her proposal. Media coverage in Germany was pretty strong as the controversial former minister still polarises the public in the aftermath of his phd forgery scandal (which led to his regrettable resignation).

For his role Mr. zu Guttenberg just receives travel compensation from the EU which leads us to question what special role CSIS takes in the project. According to Kroes spokesperson Ryan Heath CSIS is not officially behind the project, however, it was listed as zu Guttenberg’s affiliation at the European Commission press conference. Zu Guttenberg emphasized to be based in the United States, and insisted his participation was no “return” to Europe.

CSIS not yet listed in the EU lobby register. When I expressed regret to colleagues that funding sources are undisclosed I gladly received the CSIS report from 2009.

View this document on Scribd

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Barroso’s State of the Union

The Europe Union institutions copy more elements from the United States than I believe suit the dignity of the European Union. Even the “e pluribus unum“, you may also find that on the US seal, though the current US motto is “In God we trust”, ironically the EU started a competition to come up with a translation of the Latin phrase in its 27 member languages, and even reverse-translated it to Latin, in an odd fashion “In varietate concordia”.

Legislative counterfeiting is quite common. The EU serves as a recycling market for U.S. policy proposals, which results in consultancy driven EU policy initiatives, well tracable by their unusual language e.g. the Small Business Act. I admit, I am guilty, I’ve done the same, cut and paste. Monolingualism certainly helps to further that transatlantic transfer.

Today Commission President Barroso delivered a “State of the Union” speech. State of the Union, we know that from the US. Where the President of the United States, at present Barack Obama, makes a crosspartisan highlevel speech to Parliament and standing ovations are expected. But this is the European Parliament. Barroso is not the US or EU President. Everyone seemed dissatisfied with what he said. And they expressed it. Next time it needs far more thought, he has to address the right style and improve his selection of words. MEPs don’t offer Barroso the great privilege to speak his mind, they want to grill the Commission President and get him to enact their own proposals and demands.

Let’s have a closer examination

Honourable Members,

It is a great privilege to deliver the first State of the Union address before this House.

From now on the State of the Union address will be the occasion when we will chart our work for the next 12 months. Many of the decisions we will take this year will have long-term implications. They will define the kind of Europe we want. They will define a Europe of opportunity where those that aspire are elevated and those in need are not neglected. A Europe that is open to the world and open to its people. A Europe that delivers economic, social and territorial cohesion.

Who is that “we” he speaks about?

We should be under no illusions. Our work is far from finished. There is no room for complacency. Budgetary expansion played its role to counter the decline in economic activity. But it is now time to exit. Without structural reforms, we will not create sustainable growth. We must use the next 12 months to accelerate our reform agenda. Now is the time to modernise our social market economy so that it can compete globally and respond to the challenge of demography. Now is the time to make the right investments for our future.

We, at the Commission?
We, the Commissioners?
We, in this room?
We, the people? Which one?
We, the European citizens?

Members of Parliament did not appreciate an inclusive rhetoric approach. Rather they were interested in the statements of the Commission in current controversial matters of interest. A dull topic of the day, a controversial expulsion of some Roma to (non-EU) Romania by President Sarkozy in France was highlighted by many speaker as an issue worth to address by the European Commission President. Barosso’s lofty speech didn’t convince them and didn’t suit them.

Next month, we will come forward with the Commission’s first ideas for the budget review. It shall launch an open debate without taboos to prepare our legislative proposals that will be presented in the second quarter of next year.

Which taboos?

We need to spend our money where we get most value for it. And we should invest it where it leverages growth and delivers on our European agenda. The quality of spending should be the yardstick for us all. So it is not only important to discuss the quantity, but also the quality of spending and investment.

Taboos like new fundraising methods and EU public debt:

That’s why we should also explore new sources of financing for major European infrastructure projects. For instance, I will propose the establishment of EU project bonds, together with the European Investment Bank. We will also further develop Public Private Partnerships.

Indeed, it was hidden but “we” are able to spot it. What would “we” finance with it, for instance:

Our European Digital Agenda will deliver a single digital market worth 4% of EU GDP by 2020.

Now is the time to make the right investments for our future, I see. Barroso wants to follow the U.S. in public spending and seeks new public debt instruments and tax revenue at the EU level. A return of Keynesianism, this time on the EU level, or did they just copy the phrases?

Oh, later of course Barroso delivered a media statement on the Roma issues. We would listen to gnashing of teeths by French President Sarkozy or would get no reaction at all, solely depending on your awareness of sarcasm.

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European Union lost open source decision C(2006) 7108

Recently I stumbled upon a footnote in an old IDABC presentation, then had a look at the Commission registers with the reference and found a document from the Commission that was not made public yet.

C(2006)7108/1 22/12/2006 Enterprise and Industry Draft Commission Decision concerning the use of an open source software licence related to sofware developed under the IDA or IDABC programmes

A final version of the decision is not found in the register. In Europe you can file a request for public document access under the  regulation EC/1049/2001 and usually get what you ask for. IDABC is now superceded by a new EU programme for interoperability, ISA. Apparently the Commission decision was later updated when the 1.1 version of the European Union Public License was approved. The EUPL is a wise choice for software from the public sector and enterprises as it is the legally best reviewed license for European market jurisdictions, available in all EU languages, it does not contain a political agenda and is compatible to most common licenses such as the GPL.

View this document on Scribd

Any further questions?

• Was C(2006) 7108 ever formally adopted or “top killed”? Does “The European Commission approved the EUPL v.1.0 on 9 January 2007” refer to C(2006) 7108?
  It seems the document was adopted.
• Why is a final decision not found in the register?
  Because the Commission decided so on purpose! Very fishy.

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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.

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Dissent in the Council over ACTA transparency

From a confirmatory application we learn about dissent from Finland and Sweden:

FI: “Even if FI is of the view that Article 4(1)(a) of the Regulation 1049/2001 concerning the protection of international relations is applicable, it appears that the possibility of extended partial access in accordance with Article 4(6) of the Regulation has not been thoroughly considered.”

SE: “Further partial access should be granted to documents 13382/08, 15588/08, 17249/08, 12076/09 and 5363/10, since there are additional parts that are not covered by the secrecy exception in article 4(1)(a) third indent.”

The Permanent Representatives Committee is accordingly asked to suggest that the Council, at its next meeting:
– record its agreement to the draft reply annexed to this document, as an “A” item, with the Finnish and Swedish delegations voting against,
– decide to publish the result of the vote

I believe a general misconception on behalf of the Council is that EC/1049/2001 puts any constraints on the member states to grant access to Council documents. That may apply to the Council secretariat in its primary application but it does not apply to the Council when answering confirmatory applications. EC/1049/2001 defines the principles and limitations underlying the Citizen’s legal right to public documents. It does not put constraints on the Council to go beyond that. To overcome this confusion wording like “shall” in the context of constraints has to be eliminated from 1049.

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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.

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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.

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