On the Gripping Hand

Secretary of State Hilary Clinton spoke eloquently last week about freedom of information and what some countries needed to do about it. This cyber-sabre rattling was, however, in  contrast to Vice-President Joe Biden’s “piracy” summit at the White House last year. Biden’s view (as instructed by the “copyright industries” – and I can feel totally happy about using that term now, as even their key lobbyist refers to his clients that way) appears to be that information doesn’t want so much to be free as bought and sold.

There’s another interesting contrast: President Obama’s transparency memo – his first presidential act –  seems to have no impact on the United States Trade Representative, Ambassador Ron Kirk, who still insists that the ACTA negotiations are a matter of “national security”. It’s an interesting sidenote that almost all the other nations involved in ACTA swear they’ve all urged greater transparency in the negotiations, so one is left wondering which country is actually keeping it secret. Lookin’ at you, Barack!

What do we actually know about ACTA? Well, it’s named the Anti-Counterfeiting Trade Agreement, even though there appears to be nothing tradeable involved, and precious little about counterfeiting. It’s happening outside the bounds of the two international agencies specifically set up to do this sort of work – WIPO and the WTO. Why? Because the USTR couldn’t get it’s own way in those fora (having tried both – TRIPS did not deliver all the US wanted in the DMCA, and the WTO nations decided that they had more important things to worry about than the business models of US corporations) so it created a new one – a plurilateral, ‘voluntary’ arrangement where they could make up some rules and you’d have to agree if you want to play. The USTR has admitted that a lot of ACTA is based on the US-South Korea Free Trade Agreement, so anyone who wants an FTA with the US can excpect a requirement to join ACTA (“It’s not just us, you understand – it’s an *international* agreement” – yeah right).

But we are not allowed to see any details of the draft agreement or, if we are, we are not allowed to talk about it. Lawyers are, especially entertainment industry lawyers, but citizens (who are paying for it through taxes and who will be affected by it when it becomes law) are not. Even elected government representatives are not allowed to see the details that subordinate officials are negotiating – in Europe, America, the UK, questions have been asked at high levels, but no answers are forthcoming.

Pressure from individuals like Michael Geist, Jamie Love and myself through our respective freedom of information laws, from Organisations like the EFF, Creative Freedom Foundation, TechLiberty and acta.net.nz, from media commentators like Glyn Moody, Mike Masnick, Colin Jackson and many more, from actual politicians like Tom Watson(UK), Clare Curran(NZ), Jens Holm (Swe) and Senators Leahy, Spector, Sanders, Brown and Wyden(US) have forced some information into the public arena.

We know that:

There are 6 sections to the agreement:

1. Initial Provisions and Definitions;
2. Enforcement of Intellectual Property Rights;
3. International Cooperation;
4. Enforcement Practices;
5. Institutional Arrangements; and
6. Final Provisions.

The Enforcement of Intellectual Property Rights chapter has four sections:

• civil enforcement,
• border measures,
• criminal enforcement, and
• the Internet.

Other than that, we know very little. We get bland bullet point agenda and anodyne reports from the nations involved but nothing of substance, nothing that would reasssure us that the officials actually have our interests at heart, as well as the “copyright industry”.

What we do get are (very occasional) leaks – first, that list above released on Wikileaks, back in 2008 (which was probably the first time most people heard about ACTA), and more recently (via Wikileaks again) a memo from a European Commission bureaucrat commenting on some draft text proposed by the US. (Wikileaks is currently unable to be used as they are cramped for funds – please donate)

Let’s look at that memo. It’s worth quoting the summary in full:

A. GENERAL COMMENT

An overarching issue is the relationship between the US proposal and relevant EU legislation. These particular themes relating to the concepts involved the scope of the proposal and the identification of possible conflicts.

Scope of the proposal

The US proposal mainly deals with copyright, apart from a single reference to trademarks in paragraph 1. Relevant EU legislation is generally broader in scope and this issue will require further clarification from a policy perspective. This clarification concerns paragraphs 2 and 3 as paragraphs 4 to 7 are only applying to copyright.

Concept

The US proposal refers to the “Digital Environment”.

This seems to imply all digital technologies. Digital technologies are not only used in an online environment but also off-line, for example in CDs, DVDs and Blue Ray. However, this chapter has been nicknamed “the internet chapter”. Does is cover both online and offline?

The EU Acquis wording refers to “Information Society Service”.

This concept defined ISS as “services normally provided for remuneration, supplied at a distance, by electronic means and at the individual request of a recipient of services”.

Possible conflicts

1) The US proposal provides for both civil and criminal protection against copyright infringement.

This goes beyond the WIPO treaties and the EU Acquis (Directive 2001/29/EC) (CISD) which refers to “adequate legal protection” without specifying in what this protection would consist of (see 1st comment regarding paragraph 4). Furthermore, the e-Commerce Directive (2000/31/EC) (ECD) applies horizontally across all areas of law which touch upon the provision of information society services, regardless of whether it is a matter of public, private or criminal law. It is not clear how the US proposal interprets this, if at all. For example, paragraph 3.a. is limited to civil remedies only.

2) EU may wish to review the potential implications, if any, with the recently adopted Consumers Rights Directive, which is part of revised Regulatory Framework for Electronic Communications (Telecom Package).”

Right off the bat, we can see that there are inconsistencies between what the US wants and what the negotiators appear to have been talking about. The commentary points out the inconsistency with existing EU understanding, practice and law, and points to potential conflicts between ACTA, as proposed, and EU practice.

Sorry? They’ve been talking about this for 2 years and they still don’t understand what THEY mean by “digital environment”?? But we do get the point that “The US proposal mainly deals with copyright”. So why is this still the Anti-Counterfeit Trade Agreement?

I was going to go through the document point by point, but this entry is already long. It’s worth doing and I will soon, but right now I’d like to focus on a few things:

• The document is 7 pages long.
• It disects a proposal document that is probably longer, but is broken up into 7 sections.
• It comments on each section, in detail.

I don’t know how many bureaucrats are reading this but, let me tell you, my old grey ears were hearing alarms right at that point. If there’s disatisfaction with every section of a document, because of first principles, it’s time to send it back to be rethought. Instead, the EU commentary is attempting to wordsmith it into acceptability.

The sections (paragraphs in govtspeak) are:

• Paragraph 1:  General Obligations
• Paragraph 2:  third party liability for copyright infringements.
• Paragraph 3:  circumstances under which third party liability may be limited.
• Paragraph 4:  Technical Measures.
• Paragraph 5:  independent civil and criminal enforcement
• Paragraph 6:  Rights’ Management.
• Paragraph 7:  limitations of Right’s management

Without the text of the proposal, it’s difficult to really determine what the commentary is actually refering to but a few quotes stand out.

Re Para 1

However, unlike these latter provisions, the proposal does not state that the procedures etc. also shall be fair, equitable and/or proportionate in relation to, for example, an alleged infringer. Against this background, it appears like the proposed paragraph is not coherent with TRIPs and IPRED

Re Para 2

EU understands this paragraph and accompanying footnotes as providing for an international minimum harmonization regarding the issue of what is called in some Member States “contributory copyright infringement”. This concept does not exist in the current Acquis communautaire and in the law of several Member States

Re Para 3

The aim of paragraph 3(b) is to establish a system that can be considered to make the exemptions from liability subject to specific conditions: notice-and-take down procedure to address the unauthorized storage or transmission of materials protected by copyright or related rights. Such an obligation is currently not found in the ECD.

Re Para 4

It is not clear if the scope of the provision covers only phonogram author rights and neighbouring rights (performers, producers) or do the definition of ‚”author” also includes film, audio, literature.

Re Para 5

Footnote 8 seems to govern “interoperability” issues, i.e. the ability of consumers to play, for example, music which they have downloaded legally, on different players such as an iPhone or a Microsoft Media Player. The footnote seems to be intended to make sure that contracting Parties do not require that such interoperability must be achievable.

We’re talking about some new law here, to achieve this “harmonization’ ACTA seeks. Things that aren’t illegal now in most countries (including the US) will become illegal “in order to fit with our international obligations”.

The US tried this with TRIPS in order to fuel the DMCA through Congress in its original form and fell at that hurdle. The international community said ‘woah, nelly, this far and no further!” and some of the more draconian measures (like ‘graduated response’) had to be dropped. This is them trying it again.

We’re talking about major changes that will hobble innovation and tie us to decaying business models that actually only benefit a very few corporations. How do artists, musicians and authors get any benefit out of this, when they’re already struggling with their respective industries to make a buck? It’s not piracy that’s taking your money, people – it’s the contracts you signed with your publishers.

Although ACTA had its origins with Big Pharma and Big Agribusiness, the copyright industry has leapt on it holus-bolus. They’re the shock troops now, taking the heat, but my money is on the pharmaceutical and agribusiness lobbies still being heavily involved. While we are rightly concerned about what is in the “Internet chapter”, I really want to read the rest of it, where the rules against generic drugs and patent-free seeds will be. That has the capacity to be just as important and we should not lose sight of that in our desire to keep information free.

The process used to get to the end point is just as important in democracy as the result achieved, often moreso. An open, uncorrupt and objective process is the only way to gain any sort of result that benefits all parties. ACTA, so far as we can see, is only going to benefit the corporations, and that’s why, in my opinion, they’re keeping it hidden.

Secretary Clinton said:

“The final freedom, one that was probably inherent in what both President and Mrs. Roosevelt thought about and wrote about all those years ago, is one that flows from the four I’ve already mentioned: the freedom to connect — the idea that governments should not prevent people from connecting to the internet, to websites, or to each other. The freedom to connect is like the freedom of assembly, only in cyberspace. It allows individuals to get online, come together, and hopefully cooperate. Once you’re on the Internet, you don’t need to be a tycoon or a rock star to have a huge impact on society.”

What we need to see now is the implementation of those high ideals, not more restrictions. The reality has to match the rhetoric. It’s way past time to open the shutters on the ACTA process. To the participating governments, if you’ve got nothing to hide, why are you hiding something?

PS You can sign an international petition for more openness in the ACTA process at http://a2knetwork.org/joint-declaration-acta