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.
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.
In its recast of the Public Access to Documents implementation the Commission proposed a remarkable change to Article 4 (exemptions), paragraph 2:
2. The institutions shall refuse access to a document where disclosure would undermine the protection of:
(a) commercial interests of a natural or legal
person,; including intellectual property, (b) intellectual property rights;
…
It is quite important to get the legal difference of what appears to be an editorial fix, and how it limits access to documents. Right now Commercial Interests are overriding transparency (commercial interests include IP), in the future we would get a new broad standalone item (protection of) “IPR” which would comprise moral rights. I was wondering what the specific reason for this dramatic change was. In a Council document we get the explanaition why former Commissioner Margot Wallström introduced that to COM(2008) 229:
“Cion. explained that the provision concerning the protection of “commercial interests” and “intellectual property” had been split into two separate exceptions for the following reasons: As set out in Article 4 (4) of the recasting proposal (see below), the public interest in disclosure of information concerning emissions into the environment overrides by definition the protection of commercial interests, but not necessarily the protection of intellectual property rights. This means in practice, that there is no need for a balancing of interests, in as far as the principle laid down in Article 4 (4) second sentence applies, whereas such a balancing should be made, where disclosure could harm the protection of intellectual property rights or other interests to be protected under Article 4 (2) and 4 (3).”
In other words, they created a broader IPR exemption to transparency to make it more difficult to obtain information and found that IPR as an argument could be easier applied to deny access to documents. I wonder why Parliament under its rapporteur MEP Michael Cashman did not attempt to revert it.
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:
“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.
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.
The ACTA stakeholder meeting last week revealed that ACTA is going nowhere. The best indication for that was the lack of interest expressed by rightsholder groups. No one is interested in the technical mess and the broadened agenda. The poisoned apple was the unpassionate call of a few rightsholders who said they fully support the Commission and negotiator Luc Devigne said “thank you”. That is awful as it may get.
The EU negotiator is forced to deny and bend the truth on multiple fronts. That is a weakness, any supporter can withdraw and say they were deceived (like US-democrats “found out later” they were “deceived” by the Iraqi WMD tales). The Commission was very open about her agenda, now it is forced to hide and deny. Devigne irritates supporters who notice that the Commission lacks the power and guards a technically broken process with contradictory public statements to public and parliament alike.
At a meeting in Brussels on 22 March 2010, the European Commission presented a counterfeit version of ACTA to participants. As with any good counterfeit, it bore quite a strong relationship with the genuine article. However, the differences were quite obvious for those in the know.
The talking points from ACTA negotiators seem clear. When accused of being secretive, deny it and insist that you’re being open. If really pushed on the matter, blame mysterious, nameless “others” for keeping the documents secret. Then, when specific items in the text are brought up, insist that these are being misrepresented, and if only you could see the real text (which you can’t, because it’s a secret) you’d know that it was all blown out of proportion. Then, finally, insist that ACTA won’t change any laws. Of course, if that were the case, there would be no need for ACTA at all.
Now, despite Masnik’s view the overall setup was not so inconsistent when you consider the 2008 story from the Commission on ACTA, it was consistent and easy:
ACTA won’t change domestic laws. We are a coalition of the willing ready to confirm the status quo beyond TRIPS. We have to shop forums because WIPO and WTO are blocked.
ACTA would be used as a trade chip in negotiations with ‘problem states’, and once adopted, traded on them with appropriate trade incentives.
Of course the second was against the UN Charta principles to which the Commission is bound by the EU treaties, a bit like “We have to invade Tschingingistan to save the oil”. But the 2008 narrative is not true anymore.
First of all the Commission negotiators went beyond confirmation of the status quo. All players expected so but following their maximalist negotiations approach they didn’t cheat a bit (cmp. EU-Korea FTA) but went too far. ACTA includes a wide range of new and controversial matters, many of them introduced by the Commission negotiators. Thus ACTA is drawn into a political conflict over parliament scrutiny powers and legislative competences (same on the other side of the Atlantic, cmp. the constitutional criticism on the presidential adoption plan by Lessig). The Commission does not do that in the open. They say they won’t go beyond the acquis but the inclusion of criminal matters which are not in the acquis raises eyebrows. These criminal matters are negotiated by the presidency, under an uncertain procedure. What does “not beyond the acquis” mean?
Secondly, Devigne denied the second item in the answer to Hammerstein, who asked about the Commission’s name and shame list. It seems riddiculous to deny such an approach and plan given the “Global Europe” strategy contents, also given earlier statements from the directorate. They would no do that, indicated Devigne. How pathetic!
Oh, and let’s not mention the desasterous performance of Devigne regarding admitting that they won’t respect the parliament’s resolution on limit to counterfeiting. There he stressed being in line with the acquis again.
What does “not beyond the acquis” mean? It probably does not mean what we ought to think and that provides room for great controversy in Parliament, will attract all parties to dig into the technical vulnerabilities of the process under the Treaties. What DG Trade apparently fails to realise is that they lack competence to go beyond the acquis. When Parliament calls you to respect the acquis, that is like when I am warned to obey the law. So you don’t get any flowers for that. When parliament asks to limit an anti-counterfeit treaty to counterfeit, just do that.
How many hearings of that kind could the Commission still afford, until a superiour would have to pull the plug? Observers noticed how Luc Devigne became the minedog while his colleagues hide away.
On Tuesday a consolidated version of the January state of discussions was leaked on the internet. The text shows that ACTA is nowhere near consensus. Trade negotiators are no specialists for international legal harmonisation. Legal harmonisation takes decades, slow and thoughtful debate. Now a community of international legal specialists would jump in and inspect the leaked mess. More tricky questions to the negotiating parties ahead. More interest groups interested to put their stakes out the fire. How long would it take unless everyone notices that ACTA has nothing to do with a trade agreement (TRIPs was based on a fiction of barriers to trade) but is legislative? Mind the total costs of ownership (TCO) of untruths. Mind the incapability of the Commission to establish trust in parliament. Mind the technical difficulties of the process and on how many sides it can be challenged. Mind the still unresolved secrecy which attracts attention.
It is ACTA’s beginning of the end.
Open technical questions?
Just approach your ALDE MEP, they will have the next political hearing with the Commission on ACTA. Or contact the Commission, they offered to answer your questions.
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.
The European Commission has answered the written question posed by a Swedish member.
E-6094/09EN
Answer given by Mrs Ferrero-Waldner
on behalf of the Commission
(4.2.2010)
The Commission can inform the Honourable Member that the Anti-Counterfeiting Trade Agreement (ACTA) will be in line with the body of EU legislation, which fully respects fundamental rights and freedoms and civil liberties, such as the protection of personal data. This includes the Intellectual Property Rights’ relevant aspects of the Telecoms package.
ACTA should not contain measures restricting end-users’ access to the internet that would not be approparite, proportionate and necessary within a democratic society and without a prior, fair and impartial procedure.
It is the Commission’s view that ACTA is about tackling large scale illegal activity, often pursued by criminal organisations, that is causing a devastating impact on growth and employment in Europe and may have serious risks to the health and safety of consumers. It is not about limiting civil liberties or harassing consumers.
Subject: ACTA negotiations and Telecoms Package principles
In the recent agreement on the Telecoms Package it was decided that no measures restricting end-users’ access to the Internet may be taken unless they are appropriate, proportionate and necessary within a democratic society — and never without a prior, fair and impartial procedure that includes the right to be heard and respects the presumption of innocence and the right to privacy.
Are the proposals currently being discussed in the Anti-Counterfeiting Trade Agreement (ACTA) negotiations fully in line with the letter and the spirit of these provisions in the Telecoms Package? If not, when and how will the Commission redress any incompatibilities?
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