1 July 2011

ACTA: Why The EU Commission Endorses It And Why You Should Not


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Image by Martin Krolikowski on Flickr

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Yesterday I got aware that the European Union Commission had proposed to the Council of the European Union the signing and the adoption of the Anti-Counterfeiting Trade Agreement also known as ACTA.

The ACTA negotiations were launched on 3 June 2008 and after 11 rounds the agreement between the European Union (as an entity of its own), the Member States of the EU, Australia, Canada, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the USA was concluded on 15 November 2010.

In the following I will outline the main topics of Commission’s proposal and make some remarks why ACTA is in fact detrimental to nowadays’ society and why we all as individuals should oppose it.

ACTA Is Necessary

The Commission suggests that the signing and adoption of ACTA is a necessary step in order to effectively combat the infringement of intellectual property rights.
In its attempt to persuade the public opinion, the EU Commission takes the view that

ACTA includes state-of-the-art provisions on the enforcement of IPR, including provisions on civil, criminal, border and digital environment enforcement measures, robust cooperation mechanisms among ACTA Parties to assist in their enforcement efforts, and the establishment of best practices for effective IPR enforcement.

I must say that I can hardly find a topic that is not yet covered by the current legislation of either the EU or its member states.
Could the criminal enforcement be the missing point?
This might prove true, since the Commission already lamented the absence of harmonized protection of IPR through criminal law in the staff working document to its report on the application of IPRED.
While the Commission acknowledges that almost all member states provide for criminal measures to protect IPR, the national definitions and level of penalties would vary.

Nevertheless, ACTA does not provides for a harmonization either and this fact pretty much destroys the argument of its necessity.

ACTA Was Negotiated In Transparency

The Commission claims that

The EU Member States were kept informed of the negotiations orally and in writing via the Council’s Trade Policy Committee. The European Parliament has also been kept regularly informed on developments via its Committee on International Trade (INTA) and by Commissioner De Gucht.

The truth is that the negotiations were marked by the security through obscurity approach of their participants. It was the public interest, widely expressed on the Internet, that broke the silence and provoked a discussion in the European Parliament.

By the way, have you asked yourself why had an issue of such importance been kept under secrecy?

ACTA Does Not Modify The EU Acquis

The Commission stresses that

it has never been the intention, as regards the negotiation of ACTA to modify the EU acquis or to harmonise EU legislation as regards criminal enforcement of intellectual property rights.
For this reason, the Commission proposes that ACTA be signed and concluded both by the EU and by all the Member States.

Hmm, say what?
We all know that intellectual property law has become part of the acquis as of the 6th enlargement of the European Union.
If all member states to the EU together with the EU as a supranational organisation, were to sign ACTA, they would have to adopt the criminal enforcement measures contained therein.
This would not only be a clear extension of the EU acquis, worse – this extension would be brought in through the backdoor!

ACTA Is A Balanced Agreement

Maybe the strongest argument of the Commission is that

ACTA is a balanced agreement, because it fully respects the rights of citizens and the concerns of important stakeholders such as consumers, internet providers and partners in developing countries.

Again, this is simply not true.

As a matter of balance between right holders’ limited monopoly over their works and society’s interest to access these works, EU member states’ laws provide for exceptions such as copying for private and not-for profit purposes.
Not only fails ACTA to reaffirm these exceptions, but it even dilutes them by providing for a loose definition of a commercial scale.

ACTA’s Article 23 (1) reads:

For the purposes of this Section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.

This seems to be very far from European Parliament’s position on the then discussed IPRED2:

“infringements on a commercial scale” means any infringement of an intellectual property right committed to obtain a commercial advantage;
this excludes acts carried out by private users for personal and not-for-profit purposes;

Equally important and by means of an example, La Quadrature Du Net demonstrates how ACTA might destroy the balance and endanger Internet users’ fundamental human rights by allowing right holders to obtain said users’ private data from Internet service providers, without a decision of a competent court.

Conclusion

The bad news is that ACTA will very likely be signed and adopted by either, the supranational EU and each if its members states.
This is very pity since ACTA was conceived in the sin of secrecy,  is likely to destroy the anyway fragile balance of interests and the necessity of its existence is open to serious debates.

The good news, however, is that ACTA’s adoption into national law is subject to procedures you as an individual can influence.
It is up to you to raise your voice and oppose it!

3 February 2010

ACTA – a much ado about nothing or a real menace to our digital freedom?


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2propuestas para el #TwitterShowcase 24 #ACTA #openACTAphoto © 2010 Neto González  | more info (via: Wylio)

In the last couple of weeks I have been confronted with numerous and contradictory information on the Anti-Counterfeiting Trade Agreement (ACTA), its ongoing negotiation rounds, and – of course – its possible impacts on our digitised society.

Curiously enough, the information flow appears to be largely one-sided, as it originates from critics of the planned agreement at the utmost. Official European authorities’ statements are either rare or more or less expressionless. The Intellectual Property Watch has quoted the Commissioner Designate for International Trade, Karel de Gucht, saying “If there is confidentiality, I will respect it and I have to respect it.  It is impossible to change the terms during the negotiations”. Clearly, confidentiality obligations – when assumed – need be abode by. However, why should an issue of such importance be kept under secrecy?

ACTA is meant to be a multilateral trade agreement whose framers claim it to be a response “to the increase in global trade of counterfeit goods and pirated copyright protected works.”

The Scope of ACTA is Broad

including counterfeit physical goods, as well as “internet distribution and information technology”. In regards to the latter, ACTA is feared by many to bring the so called “three strikes and you are out” rule that would eventually lead to an internet denial for, say, users of infringing file sharing platforms. Such rules, for instance, are currently reported to be either implemented or seriously discussed in France, the United Kingdom, New Zealand, South Korea, and Taiwan.

ACTA is further frequently pulled together with the Directive 2004/48/EC (IPRED). Allegedly, the European Institutions await ACTA’s coming into force in order to align it with the IPRED II that was proposed in 2005 and aims to introduce criminal measures to ensure the enforcement of intellectual property rights.

Put it another way and given the validity of the above, ACTA will provide for

Some Atrocious Amendments

of the intellectual property legislations around the globe.

Indeed, I acknowledge that we live in an intellectual property driven society. Peterson J’s dictum “what is worth copying is worth protecting” in the University of London Press vs University Tutorial Press case seems to be as relevant today as it was in 1916.  And yes, it is true that the advent of Internet brought an inexpensive way to copy digital works and to distribute them without suffering any loss in quality. It is thus understandable that authors and right owners sought and are still going to seek sufficient protection for their works. Legislation on intellectual property, however, has always sought to

Provide for a Societal Balance

i.e. a balance between right owners’ limited monopoly over their works and society’s interest to access these works. The changes considered to be introduced by ACTA will, in my humble opinion, cause an imbalance in favour of the right owners.

As a consequence, ACTA is to be viewed – at least on the realm of Internet –  as a

Menace to Our Digital Freedom

rather than as much ado about nothing. If I were asked to advise the content industry, I would emphasize on business models and licensing schemes somewhat different than the current ones instead of employing a “seek and destroy” strategy to fight digital infringement.
There are many voices out there presenting good ideas, the content industry should just listen up.