ACTA's Back: European Commission Trying To Sneak In Worst Parts Using Canada-EU Trade Agreement As A Trojan Horse

from the not-dead-yet dept

Mon, Jul 9th 2012 9:00am — Glyn Moody

Even in the face of a resounding rejection of ACTA by the European Parliament last week, the European Commission seems determined to keep pushing for its eventual adoption. Techdirt noted some ways in which it might try to do that, but an important article by Michael Geist lays out what seems to be an alternative approach that is already close to fruition:

According to recently leaked documents [pdf], the EU plans to use the Canada-EU Trade Agreement (CETA), which is nearing its final stages of negotiation, as a backdoor mechanism to implement the ACTA provisions.

Here's how that would work: The European Commission strategy appears to be to use CETA as the new ACTA, burying its provisions in a broader Canadian trade agreement with the hope that the European Parliament accepts the same provisions it just rejected with the ACTA framework. If successful, it would likely then argue that ACTA poses no new concerns since the same rules were approved within the Canadian trade deal.
What's extraordinary is how slavishly the CETA IP chapter follows ACTA -- Geist's post provides a table comparing the two in detail, and for many key issues, CETA adopts ACTA's wording exactly.

This includes requiring the promotion of "cooperative efforts" that could see ISPs taking down content on a "voluntary" basis; the use of the meaningless term "fair process"; disclosure of a subscriber's information "expeditiously" upon accusation of infringement; civil damages that consider "any legitimate measure of value that may be submitted by the right holder, including lost profits"; the use of the vague term "commercial scale" for both civil and criminal enforcement measures; and criminal liability for "aiding and abetting" infringement.

What that means is that practically all of the key stumbling blocks that persuaded the European Parliament to vote against ACTA are also present in CETA. As Geist observes;

The backdoor ACTA approach creates enormous risks for Canada's trade ambitions. Given the huge anti-ACTA movement, the Canada-EU trade deal could face widespread European opposition with CETA becoming swept up in similar protests.

After all, if those proposals were problematic in ACTA, they are equally problematic for CETA, and so it seems likely that the European Parliament will vote against the entire Canada-EU trade deal just as it threw out ACTA. The obvious solution is to remove the intellectual property chapter from CETA altogether to avoid this risk. Geist points out there's an important precedent for this: the U.S. and EU recently announced their own plans to negotiate a trade deal but agreed to keep intellectual property issues out of the talks. If CETA becomes known as ACTA II, the future of the Canada-EU trade deal may hinge on adopting a similar approach.
That would not only be a good idea for CETA, it would be sensible for all trade agreements, since it would return them to their original aim of promoting trade between nations, not regulating the domestic laws governing things like copyright.

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Filed Under: acta, canada, ceta, european parliament

32 Comments

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Zakida Paul (profile), 9 Jul 2012 @ 9:27am

The way of politics - can't get legislation you want? Easy, sneak it into legislation no one will argue with and claim victory.

Do people really not know why politicians are not trusted? This is why, underhanded tactics to pass legislation that benefits big business to the detriment of wider society.

The only thing that will change things is a revolution but people are too busy watching trashy reality TV to care.
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Josef Anvil (profile), 9 Jul 2012 @ 9:29am

Predictable
If the IP section is taken out of CETA and TPP doesn't work out, that doesn't mean that the MPAA/RIAA will just give up. We will be seeing this IP agenda pushed until it makes it into a treaty or national laws OR the people begin aggressively voting these muppets out of office.

Something will give one way or the other.
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Michael, 9 Jul 2012 @ 9:33am

What a sleazy tactic. Thanks for shining a light on this.
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Anonymous Coward, 9 Jul 2012 @ 9:34am

Re: Predictable
Or the legacy media industries finally get the deaths they deserve.
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Anonymous Coward, 9 Jul 2012 @ 9:34am

Re: Predictable
Or the legacy media industries finally get the deaths they deserve.
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Jay, 9 Jul 2012 @ 9:35am

Once it becomes too toxic to add the bucket of crazy that the **AA's wants in treaties i'm thinking the US will just stop adding it in the interest of actually getting a treaty passed.
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Cameron Ferguson, 9 Jul 2012 @ 9:39am

They never give up, do they?!
Now those of us who never read Karel de Gucht's speech on ACTA knows what he meant. Well, the Parliament killed ACTA, it can do it again.

Hello Democracy, Goodbye CETA
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Hephaestus (profile), 9 Jul 2012 @ 9:57am

Re: Predictable
It should be obvious by now, we should not only be creating a set of principals for internet freedom but also for copyright and patents. Which we continuously use to beat over the heads of the copyright and patent industries, plus any politicians that get in the way.
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Jessie Elias, 9 Jul 2012 @ 10:03am

Agreed completely with this article
I'm a frequent reader on TechDirt but, I never posted anything until now.

I was up in arms with cheer to hear about ACTA's death and I was equally pissed that I heard about this via a recent article on DeviantArt.

I do think that most lawyers and bureaucrats nowadays are going completely nuts and thus, they have no respect for the people that they are supposed to represent in favor of the huge lump of cash they'll get.

I find that completely despicable.

Once enough people catch wind of this and get the word to the European Parliament that this is happening, the European Commission can kiss CETA/ACTA 2.0 GOODBYE.
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Violated (profile), 9 Jul 2012 @ 10:11am

Where did my holiday go?
Gee after all this hard work blasting SOPA, PIPA and very recently ACTA out of the water I was hoping for a couple of weeks off to Sun and relax with a nice cold drink.

Now here we are all of FIVE DAYS LATER facing CETA as the new ACTA v2.0 and I am getting rather stressed out. They are lobbing new trade agreements at us like a multitude of hand-grenades.

Well I certainly hope they go and neuter CETA of all these bad aspects before anyone comes to sign. We can already see that TPP-A is trying to backtrack in trying to cut the public a sweeter deal and here they are wanting to terrorize us with an ACTA clone. I think I will throw up when this leave a bad taste indeed.
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Adrian Lopez, 9 Jul 2012 @ 10:14am

Re: Re: Predictable
The Internet needs a Bill of Rights to defend the network against those who would regulate it in ways that are harmful to the network or to the public interest.
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Machin Shin (profile), 9 Jul 2012 @ 10:14am

I think the big issue here is that the population grew too complacent. Things were "going well" so most of the population began to ignore politics. As a result the politicians have become bold thinking they can do whatever they want. Trouble is that once the politicians started to stomp on peoples toes suddenly they find people are starting to pay attention again.
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Anonymous Coward, 9 Jul 2012 @ 10:27am

Re: Where did my holiday go?
Were you violated with naughty tentcles or by woodland critters?
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Timothy Heersawoo, 9 Jul 2012 @ 10:29am

Canada Died Years Ago
Vile bottom-dwelling multinational corporate fascist trolls seized (and sleazed into power in) Canada federally several years ago.

They are driven by pure evil and the greed of their multinational owners and have huge financial aid from many of the usual well-known and much-hated international fascists. They turned Canada from one of the most liked countries in the world to one of the most hated shitholes on the planet.

Sound familiar?

The day those evil anti-humanity bastards seized power was the day Canada died. The dead body once known as Canada is now well beyond mutilated to the point that it is unrecognizable.

It's now called The Kingdom of Harper The Evil Bastard and His Evil Cabal of Bastards.

The sheeple are too passive and dumb (and I mean really, really, really passive and dumb) to rebel.

Only a brainless moron would want to live there.
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Anonymous Coward, 9 Jul 2012 @ 10:34am

these buggers just wont give in! i assume it's the same people that were responsible for trying to force ACTA through but were defeated last week in the EU? what should happen is that these supposed 'peoples representatives' need to be expelled from the EU and banned from holding any position within it. it definitely shows the money that has been spent to achieve what the entertainment and pharma industries want is substantial. otherwise, any sane person would back away now. what these people are forgetting is, once these industries get what they want, they'll be dropped like red hot turds!!
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Hephaestus (profile), 9 Jul 2012 @ 10:41am

Re: Re: Re: Predictable
We also need new rules for copyright and patents.
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Chosen Reject (profile), 9 Jul 2012 @ 10:45am

Re:
The only thing that will change things is a revolution but people are too busy watching trashy reality TV to care.
I don't think this is true. Firstly, a revolution wouldn't be necessary. Protests in Europe killed ACTA, not revolutions. I do agree that most people are too lazy to care, but they're too lazy to protest and write/call/contact their representatives. A lot of people, even ones that feel revolution is necessary, are extremely reticent to start a revolution for lots of valid reasons, none of them having anything to do with either laziness or trashy reality TV.

Revolutions are bloody. They cause all sorts of disruptions for a really long time, and there is no guarantee either 1) that it will succeed in overthrowing the current government or 2) that a decent new government will take the place of the old.
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The eejit (profile), 9 Jul 2012 @ 10:55am

Why doesn'tt he EU claim cop[yright infringement on those clauses? After all, the ACTA leaks all had copyright notices on them...
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Anonymous Coward, 9 Jul 2012 @ 11:00am

Re:
Now everyone knows.

Thanks global network thing!
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Greg (profile), 9 Jul 2012 @ 11:07am

Re: Canada Died Years Ago
Wow. Only a brainless fuckwit would say something like that. Canada remains a great place to live despite the morons currently in power.
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Anonymous Coward, 9 Jul 2012 @ 11:10am

We wont be safe from these, until laws have been passed PROTECTING the internet from people who refuse to understand it
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Simple Mind (profile), 9 Jul 2012 @ 11:18am

Re:
People like to assume that once the old content industry is gone all our problems go away. But I suspect techdirt will be in business long after the *AAs are dead. The fact that they are able to push things to a point where it concerns us at all is a sign of systemic corruption. The systems are broken and they will be continuously abused until we do something about it.
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Al Bert (profile), 9 Jul 2012 @ 12:26pm

Re:
Since the 'toxicity' in this case occurs only when non-benefiting parties are aware or when the agreement's core disinformation is exposed in even cursory scrutiny, the obvious first (and current) change would simply be to act in cover of darkness and deny all oversight.
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Anonymous Coward, 9 Jul 2012 @ 12:39pm

Re:
Well, if only we could claim it was "politicians". Technically I see politicians as people in a position up for elections and acceptance of the public. The commission in europe is as far as you get from that. They are chosen by the council and either the parliament accepts them all or reject them all. A lot of backroom dealing is going on to get the political fractions in the parliament to accept the commission. After that, the commission can do what they want as long as they are able to convince enough other people about it in first the commission and since the parliament.

In other words: The negotiators for EU are not even close to politicians. They are officials with agendas and their respect for the public of EU only goes as far as the lobbying world of the parliament...
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Anonymous Coward, 9 Jul 2012 @ 12:50pm

Except for a few craptastic wordings CEPA is not as bad as ACTA. Get fair process replaced by due process and get a lot more narrow interpretations of what the "cooperation" can entail and we are at a stage where we can look throught the rest and maybe even accept it!
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Anonymous Coward, 9 Jul 2012 @ 12:58pm

Re:
and then I read the thing through and saw several far worse formulations than in ACTA. Dang.
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Vincent Giannell, 9 Jul 2012 @ 4:18pm

We've been had.
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Gene Poole, 9 Jul 2012 @ 5:44pm

Umm...let's not be too hasty
Looks like Rick Falkvinge disagrees with you, mike

http://falkvinge.net/2012/07/10/alarm-over-ceta-appears-premature/

Apparently this is standard fare, since this doc was written back in February, when it was assumed that ACTA would be passed, to build upon it with this document, which is why the wording is so similar. I don't think this is necessarily being backdoored.
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Peter, 10 Jul 2012 @ 2:07am

I believe it's torch&pitchfork-time.

Bring back the guillotine!
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Anonymous Coward, 10 Jul 2012 @ 2:59am

Re: Umm...let's not be too hasty
Rick Falkvinge does not disagree that ACTA and CETA-draft 02-2012 look alike. He is merely pointing to an anachronism. That being said, I think he has a lot more respect for the commission and the effect of ACTA than what is due. ACTA got killed primarily because of pressure from the streets and the parliamentarians from certain parties felt forced to act against it. EPP is split on this issue and so is ALDE, EFD and ECR. If CETA was to be put up, it would be called a bilateral trade agreement and it would be far less controversial in nature than ACTA. In fact they are dealing with bilateral trade agreements quite often and they are pretty fast to pass through. ACTA-language in CETA would most likely get stopped immediately, but trying to sneak some vague resemblances through is not as stupid as it seems since ACTA will get resurrected anyway.
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[citation needed or GTFO], 10 Jul 2012 @ 3:09am

Re: Umm...let's not be too hasty
I'm usually all aboard the whole "torches and pitchforks" mentality, but unless someone else can state reasons otherwise, I'm going to have to agree with Gene here.

Since the Europarl managed to "boom-headshot" the European Commission from getting ACTA passed, it seems unlikely that CETA will be able to get through without resistance.

Also, the "recently leaked documents" were from February 2012. It could've been rewritten since then (highly doubtful, but you never know).
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Prisoner 201, 10 Jul 2012 @ 5:44am

Re:
"That is not dead which can eternally lie."
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