Trademark Lobby Wants To Help European Court of Justice Forget About EU Citizens' Rights
from the is-that-the-smell-of-panic? dept
It was only yesterday that the European Commissioner Karel de Gucht made the surprise announcement that the European Commission would be referring ACTA to the European Court of Justice (ECJ) "to assess whether ACTA is incompatible -- in any way -- with the EU's fundamental rights and freedoms." Just a few hours after that, there are already signs of panic among ACTA's supporters that the treaty may indeed be incompatible -- and thus dead in the water as far as the European Union is concerned.
Here, for example, is a press release from the International Trademark Association (INTA), in which it makes an extraordinary offer:
the International Trademark Association (INTA) stands ready to provide any assistance to the Court or other interested parties in order to highlight the positive effects the trade agreement will have on the EU, its economy and its citizens.
This is wrong on just about every count. For a start, there have still been no "discussions" about ACTA, despite the fact that public interest groups have been requesting them for years. And is it any wonder if there is a "heightened sense of mistrust" in online conversations if the governments negotiating ACTA have consistently refused to make key information available to the public?
The referral provides an opportunity for interested parties to continue the discussions based on ACTA's text itself, and not the heightened sense of mistrust and misinformation that has proliferated in online conversations.
But most of all it's wrong because the referral to the ECJ is emphatically not an opportunity to have a general chat about ACTA: it's for the EU's most senior judges to consider in detail whether the treaty as negotiated is compatible with Europe's existing laws -- not something a trademark association can contribute much to.
In particular, those judges will be looking at possible incompatibilities with the EU's "fundamental rights and freedoms." But that, of course, is the last thing INTA wants the judges to think about:
INTA hopes that the European Court of Justice will make a considered and quick assessment of ACTA, acknowledge the serious threats that counterfeiting and piracy pose for the EU and provide the necessary clarity to pave the way for consent to the Treaty by the European Parliament and ratification by Member States.
How the judges are supposed to make an assessment that is both "considered" and "quick" is something the press release doesn't make clear. But leaving that aside, together with the fact that the referral is purely about rights and freedoms, not commercial considerations, this does highlight an important, if obvious, point: that the principal justification for ACTA remains that it will tackle counterfeiting effectively. But will it?
Counterfeiting and piracy are on the rise and constitute serious threats to consumers, legitimate businesses and innovators. ACTA is instrumental for tackling these issues
The European Commission has put together a document explaining the rationale for ACTA that contains the following claim:
As Europe is losing billions of Euros annually through counterfeit goods flooding our markets, protecting Intellectual Property Rights [with ACTA] means protecting jobs in the EU.
But as I have explored elsewhere at some length, that makes no sense. According to the EU's own figures, 99% of those counterfeit goods entering Europe come from countries that are not signatory to ACTA. The treaty will therefore have no effect on those counterfeits in their countries of manufacture. And once they get to the EU, fake goods can be dealt with using existing EU laws. ACTA will make no difference because, as we have been told repeatedly by the Commission, the treaty changes nothing in Europe. Thus, ACTA will not help tackle that flood of counterfeits inside the EU, nor will it protect jobs there.
Interestingly, when he announced the referral of the treaty to the ECJ, de Gucht used a slightly different argument about fake goods to justify the ratification of ACTA:
Intellectual property is Europe’s main raw material, but the problem is that we currently struggle to protect it outside the European Union. This hurts our companies, destroys jobs and harms our economies. This is where ACTA will change something for all of us - as it will help protect jobs that are currently lost because counterfeited and pirated goods worth 200 billion Euros are floating around on the world markets.
But once more, what this skates over is the fact that ACTA will only have any impact on the countries that have signed it -- others, like China, will be able to carry on as before. So ACTA will only affect a portion of the "counterfeited and pirated goods ... floating around on the world market" -- those that are being offered in ACTA countries.
The main signatories outside the EU are Australia, Canada, Japan, New Zealand, South Korea, Switzerland and the US, all of which already have relatively stringent laws against counterfeit goods. So that means that the only places where ACTA might have some effect are Mexico and Morocco, which may be obliged to tighten up their anti-counterfeiting laws. But that on its own will achieve little: as with the counterfeits "flooding" Europe, ACTA will have almost no effect on those "floating around on the world markets."
So not only is INTA misguided in trying to divert the conversation away from the key issue of the EU's fundamental rights and freedoms, its principal argument in favor of ACTA -- that it will tackle counterfeiting in Europe -- just doesn't hold up. Which leaves us with INTA's parting shot:
it is imperative that the EU continues to protect its citizens and uphold its status as a responsible trading partner by joining the other negotiating parties in the international effort to fight counterfeiting and piracy.
In other words, if you decide not to ratify ACTA because it undermines civil liberties and doesn't tackle counterfeiting, we'll call you "irresponsible" and other rude names.
Yeah, that'll work...
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Filed Under: acta, eu, eu court of justice, karel de gucht, trademarks
Companies: inta
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"Your mother was a poser and your father wore women's underwear!"
"We are the gatekeepers that say... Ni!"
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Where's my money going! Show me the money!
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The answer, money doesn't flow out of the US or Europe. It just rots inside fat gatekeeper pockets and when they see it full of mildew they just throw it away, like tissue.
In other news, Intellectual Property seems to be important than oil or gold. Would those dumbasses complain more if we pirate a software they own than steal their wallets?
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I dunno, ask the Federal Reserve and the S&P.
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- What money?
"It's flowing out of the US from piracy"
- What are you babbling about?
"Is it China?! Wait...no...they're clamping down on it for the same reasons"
- Now you're being delusional
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This is renewing my hope for humanity. Now if only the US government would get their century-old heads out of their asses...
*"asses" = human posteriors or MAFIAA (jackasses)
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ReallY? An association of lawyers with expertise on a particular subject can't contribute to an evaluation of whether a proposed law dealing with that subject complies with existing superior laws?
Can't say I agree with you there.
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So no.
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An association of lawyers with expertise in trademark law can't contribute to an evaluation of whether a proposed law dealing with that subject complies with human rights laws?
So, no.
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Because their ability to be unbiased is severely compromised and thus should NOT be allowed into the trial.
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I mean, most (all?) trials involve biased lawyers presenting arguments, right?
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I doubt it would be very helpful
"I mean, most (all?) trials involve biased lawyers presenting arguments, right?"
I missed the part where this is a trial ... perhaps someone could point it out to me.
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From the INTA website:
How do get from here to 'an association of lawyers'?
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As an attorney and INTA member, I think of the group as an association of trademark lawyers, although you're right that not all INTA members are lawyers.
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Actually a lobby group with an agenda that employs lawyers. Maybe those lawyers could make a contribution but:
1) Their expertise would be in commercial law - not "fundamental rights and freedoms".
2) They are definitely not impartial - so how could anyoine trust that contribution.
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INTA's expertise is in trademark law, so they can make a contribution to an evaluation of the interaction of "fundamental rights and freedoms" with a proposed trademark treaty.
I'm not sure why their bias makes it unlikely they could contribute much of value. Judges routinely get helpful information and argument from biased attorneys, and are generally considered experts at divining the important nuggets from such biased presentations.
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When and if this occurs, are not both side of the issue allowed to speak their biased opinions? ACTA has been, and apparently will continue to be, one sided. How is this even close to being comparable?
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Most of the trademark association's members/employees are lobbyists, not lawyers, boy.
And, since they work for the association, their views, and therefore, their interpretations, are somewhat biased.
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Holy Cow!
I guess everyones main raw material is Intellectual Property.
So everyones economy runs on artifical scarcity.
Oh, excuse me, the monkeys are flying out of my butt.
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What about the citizens who have trademarks? Don't they have rights too?
There are many, many more people who rely upon copyright to protect their creations than people who "share" others' works over P2P networks.
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Re: What about the citizens who have trademarks? Don't they have rights too?
The problem is, right now, it's a horribly twisted and mutated version of what it SHOULD be.
When laws are perverted far beyond their original intent, people stop listening to them.
Stupid laws don't get any attention paid to them, after all.
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Re: What about the citizens who have trademarks? Don't they have rights too?
or just stupid.
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Re: Re: What about the citizens who have trademarks? Don't they have rights too?
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Re: What about the citizens who have trademarks? Don't they have rights too?
Actually, there are many, many more people who "share" others' works over P2P networks than who rely upon copyright to protect their creations than people.
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Re: What about the citizens who have trademarks? Don't they have rights too?
Sorry, but that is not correct.
First of all, copyright (supposedly) provides recourse to those who find themselves a victim of copyright infringement. It prevents nothing.
Secondly, I recall reading many stories about different companies using a photo without permission, licensing, or attribution. Some come clean under pressure, others simply thumb their noses.
So, let's be realistic here and knock off the BS - K?
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Re: What about the citizens who have trademarks? Don't they have rights too?
You're lumping in copyrights and trademarks. They're not the same thing at all. Trademarks, for instance, do not arise from the Constitution; that clause is for copyrights and patents.
Trademarks, by definition, can only apply to a mark used in trade. They exist to identify a company, and they exist to prevent consumer confusion. Also, trademarks must be actively used by a business, or they can be lost (unlike either patents or copyrights).
Copyright prevents big businesses from just taking any photo they see on Flickr and using it for an ad campaign.
Not really. Any company can do this; they can just be sued if they do. This means that companies only get in legal trouble if the photographer can afford to bring a lawsuit against them. If we're talking about Flickr users, that's probably not the case.
And if they can afford to sue, they can sue for any use of the photograph, whether it's used by a company, or by some granny in Pensacola who used it as a pattern for her quilting. Subject to fair use, of course... and to how much of an asshole the photographer is.
There are many, many more people who rely upon copyright to protect their creations than people who "share" others' works over P2P networks.
There are many, many more people whose creations are censored because they infringe on someone else's copyright, than there are who get any tangible benefit from copyright protection.
On balance, copyright hurts your average, everyday creator far more than it helps them.
If you believe that shouldn't be the case, then you should agree with those of us that think copyright should be rolled back to prohibit commercial use alone. You should be in favor of Creative Commons licenses, and support non-profits like the EFF or FSF.
Somehow, I don't think that's going to happen.
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Re: What about the citizens who have trademarks? Don't they have rights too?
And a great deal, I'd say about 1/2 or more, of Flickr is covered by Creative Commons and various CC licenses which allow for and, often, encourage copying, mashups and all the other "uncreative" stuff you object to so strongly. That doesn't mean a copyright isn't there but that the licensing is more permissive than commercial licensing.
There's also a wealth of CC licensed art out there, stories, videos and other stuff that you seem blissfully unaware of.
As I've mentioned before there are also software licenses like the GPL and BSD licenses that are also copyrighted but, again, not primarily for commercial use.
Not all copyright is intended for profit or for the use of gatekeepers. Though it is the gatekeepers that are pushing things like ACTA on the rest of us behind closed doors.
I'm not sure how many individuals actually have trademarks. That usually comes after a certain amount of notoriety for fame or both where someone might want to capitalize on their names. By then, those people are often highly involved with the gatekeepers anyway. Certainly a lot of small businesses do for as long as they last.
What I read from you is that you have no idea what copyright and licensing is used on an individual level. For you it's all about protection and making money. (Hand over fist in your dream world.) If I'm photographer trying to break into the commercial world I'd just as soon my work was seen on Flickr, downloaded and widely shared so that someone might hire me. After all. It's a cheap way to put a portfolio together. Same for videographer starting out. So, under a CC license, grab it, share it, do what you want with it just keep my name with it!
As for your last sentence you have no idea how many people share stuff on P2P networks, legally or (in your mind illegally) or do other work on P2P or B2B and other like networks out there that you know nothing about.
Not all copyright (or patents for that matter) are used or intended to be used restrictively.
As for big business stealing stuff, if they do the single person gets to face an army of lawyers who will keep me in court unto the 7th generation and then some.
Oh, brilliant man though he was, Thomas Edison made a career out of infringing copyrights and patents belonging to others. Just ask Nikola Tesla.
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Re: What about the citizens who have trademarks? Don't they have rights too?
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Translation: "The success of our business models are too important to let a little thing like human rights get in the way."
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:-)
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Europe is not losing billions of Euros through counterfeiting: it's losing billions of Euros through financial incompetence by a number of financial institutions. Counterfeiting is a by-product of poor business sense.
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http://www.techdirt.com/articles/20110906/02511015805/europes-copyright-strategy-have -europeans-send-as-much-money-as-possible-to-us-companies.shtml
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if assisting was going to be detrimental to their cause, would the International Trademark Association be so keen to offer it to the EUCJ? i somehow think not!
shows how desperate these bodies are to get things in place, doesn't it? what a shame no one can view the future. if for no other reason, we could then see the impact this and similar 'agreements' would have and which countries/corporations would benefit/lose the most.
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And I bet that opportunity is on a cruise ship or 5* golf and spa resort.
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"I hate anything that will get in the way of my piracy".
More justification from you. Nice!
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I agree completely.
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AC, I think you can sum it up by saying:
"I think anyone that criticizes copyright, for any reason whatsoever, is a damn dirty pirate who just wants stuff for free."
More idiotic ad hominems from you. Nice!
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The US HAS Not signed ACTA
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De Gucht ...
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1- talk about jobs
2- talk about economy
3- talk about intellectual rights
4- Done that? Okay, now make sure you NEVER, EVER give examples, reasons or even excuses when you mention these three subjects.
5- let's train! Repeat after me: "[blank] is/are a threat to [your institution]! It destroys jobs, and in turn our economy is not powerful enough! Plus it/they hate intellectual rights!"
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