European Commission: ACTA Is Dead, Long Live ACTA?

from the hidden-in-plain-sight dept

The first six months of 2012 saw Europeans taking to the streets in order to kill off ACTA in the European Union. Against all the odds, they succeeded in that aim, as the European Parliament voted to reject ACTA on 4 July last year. That defeat has certainly been burned into the memories of Karel de Gucht, the EU Commissioner responsible for negotiating first ACTA and now TAFTA/TTIP. When he was asked whether the latter might see ACTA sneak in by the backdoor, here's what he replied:

"ACTA, one of the nails in my coffin. I'm not going to reopen that discussion. Really, I mean, I am not a masochist. I'm not planning to do that.

If the Commission advances new basic legislation, which I think she should, we will revisit the question, but I'm not going to do this by the back door".

So you might think that ACTA is definitively dead and buried in the EU. But then along comes a new free trade agreement, this time between the EU and Singapore, which has the following section, Article 11.44, paragraph 2 (pdf):

In determining the amount of damages for infringement of intellectual property rights, a Party's judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

Those with good memories may recall that something similar was to be found in ACTA, and that it was one of the problematic areas that led the European Parliament to reject the treaty. In fact, it's not similar, it's word-for-word identical with Article 9, paragraph 1 of ACTA (pdf). And it's not the only section that's been cut-and-pasted from ACTA: several other paragraphs are also direct copies.

This raises an interesting question. At the moment, the EU-Singapore FTA has only been "initialled": that means it must still be approved by the European Commission, the Council of Ministers representing the member nations, and the European Parliament. So will the EU's MEPs reject the new trade agreement because it represents ACTA by the backdoor -- or at least a part of it? That seems unlikely.

But if the European Parliament does pass the EU-Singapore FTA, de Gucht might then argue that the same sections from ACTA can now be pasted into TAFTA/TTIP, since they are no longer problematic. And if he does so, perhaps he will be tempted to include a few more sections from ACTA, on the grounds that he is doing nothing "by the backdoor", but doing it in the full view of everyone....

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Filed Under: acta, europe, european commission, european parliament, karel de gucht, singapore, trade agreements

European Commission Report Says Open Access At 'Tipping Point'

from the idea-whose-time-has-come dept

Techdirt has been reporting for some time on the growing number of moves towards making academic work freely available to the public -- for example this recent major boost from the University of California. But what about the bigger picture? How is open access doing overall? The European Commission has just published a new report trying to answer those questions, which offers an extremely upbeat assessment:

The global shift towards making research findings available free of charge for readers -- so-called 'open access' -- was confirmed today in a study funded by the European Commission. This new research suggests that open access is reaching the tipping point, with around 50% of scientific papers published in 2011 now available for free. This is about twice the level estimated in previous studies, explained by a refined methodology and a wider definition of open access. The study also estimates that more than 40% of scientific peer reviewed articles published worldwide between 2004 and 2011 are now available online in open access form. The study looks at the EU and some neighbouring countries, as well as Brazil, Canada, Japan and United States of America.

Despite that good news, there's no room for complacency. As we've noted before, publishers reluctant to come to terms with open access have started pushing back in various ways. But as the EU report indicates, they are clearly on the wrong side of history now.

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Filed Under: eu commission, european commission, open access

A Tale Of Two Studies: File Sharing Helps Sales!

from the the-other-side-of-the-coin dept

In the first part of this three part series, we talked about some research that suggested that the shutdown of Megaupload directly resulted in an increase in the sale and rental of digital movies. The study's authors used that to suggest that this proves that unauthorized download sites displace actual sales, and that there is likely a positive economic impact on copyright holders when properties like Megaupload are shutdown. However, as noted, another study that came out just after that one seemed to suggest something very different.

The second study, put out by the European Council, also is rather compelling, but argues something almost entirely contradictory: that there is no sign that infringement leads to a decrease in sales. In fact, it shows a very slight increase in sales. The researchers here were looking at a different market, however. They looked at digital music, and the impact of infringing downloads on authorized streams and downloads. The research found little impact:

Our results suggest that Internet users do not view illegal downloading as a substitute to legal digital music. Although positive and significant, our estimated elasticities are essentially zero: a 10% increase in clicks on illegal downloading websites leads to a 0.2% increase in clicks on legal purchases websites. Online music streaming services are found to have a somewhat larger (but still small) effect on the purchases of digital sound recordings, suggesting complementarities between these two modes of music consumption. According to our results, a 10% increase in clicks on legal streaming websites lead to up to a 0.7% increase in clicks on legal digital purchases websites. We find important cross country differences in these effects.

Going a bit further, they note:

Perhaps surprisingly, our results present no evidence of digital music sales displacement. While we find important cross country differences in the effects of downloading on music purchases, our findings suggest a rather small complementarity between these two music consumption channels. It seems that the majority of the music that is consumed illegally by the individuals in our sample would not have been purchased if illegal downloading websites were not available to them. The complementarity effect of online streaming is found to be somewhat larger, suggesting a stimulating effect of this activity on the sales of digital music.

Taken at face value, our findings indicate that digital music piracy does not displace legal music purchases in digital format. This means that although there is trespassing of private property rights (copyrights), there is unlikely to be much harm done on digital music revenues.

There are some significant similarities between the two different studies. Both go through the previous research into this issue and tend to cite almost all of the same papers (which is a good sign) to show what's been done before, and what the limitations are of that research. Both also focus on the question of online impact. That is, previous research has tended to focus on the impact on other modes of consumption: i.e., does downloading increase or decrease DVD purchasing, CD purchasing or movie theater sales. Both of these reports, however, look strictly at unauthorized downloading/streaming as compared to authorized downloading/streaming.

The specific methodologies differ somewhat, however. The MPAA paper compares overall sales/rentals vs. Megaupload penetration. The EC paper looks at direct clickstream traffic data as provided by Nielsen NetView, which collects direct data on exactly what sites people visit. The EC researchers, Luis Agular and Bertin Martens, then classified visits to different "music consumption" sites to see if they could isolate some sort of relationship between unauthorized streams and downloads and authorized ones. As with the MPAA study, there are some potential limitations there (mainly in sussing out the details of what people are actually doing on any particular page -- especially when some pages, such as Amazon.com, could result in other activity that is not music related), but the researchers do a good job trying to control for these limitations.

Also, it's good to see that in some cases the underlying data between the two studies agrees. Both, for example, show much greater usage of sites that have many unauthorized uses in Spain, for example. Unfortunately, other than Spain, France and Germany, the selection countries studied in the two reports is mostly different, so it's difficult to confirm other points between the two.

The EC study confirms another point that should be settled by now: those who use unauthorized sites are the biggest fans, by far.

The figures show that legal consumers (individuals that never clicked on an illegal music website during 2011) are, on average, active 2.5 months a year, while downloaders are active almost 6 months a year. Most interestingly, downloaders are also more active than legals both in terms of legal downloading (10% more clicks) and legal streaming (40% more clicks), as shown by their mean values of clicks. A positive relationship between legal and illegal consumption of digital music therefore emerges from this simple comparison of means. Comparing streamers and non- streamers (individuals that never clicked on a streaming music website during 2011) leads to similar conclusions. The figures show that streamers click more than twice as much on legal downloading websites, while their clicks on illegal downloading websites is 90% higher than for non-streamers. Again, this simple comparison of means shows a positive relationship between the different consumption channels and in particular between streaming and legal purchases.

Of course, as many will (rightfully) point out, this is just correlation data, which is useful, but not enough to prove any causal relationship. So the researchers go further. They use a number of variables try to separate out which users are most interested in music itself, by looking at whether they visit other music-related websites, such as music lyrics or music news sites, as well as other types of "music consumption" sites like video websites. Again, the data suggests a clear causal relationship.

Our results suggest that illegal downloading and legal streaming have both a positive and significant effect on legal purchases of digital music.

As you can see in the report, they continue to slice and dice the data a few different ways to test for other potential variables that might be creating this situation, and each time they fail to find any evidence of it. Instead, they see the same thing: engaging in unauthorized downloading appears to lead to more digital purchases, and the same for authorized streaming.

In the third piece in this series, we'll see if we can reconcile what appear to be very different findings in these two studies, as well as respond to the entertainment industry's freak out about this second study.

Filed Under: european commission, file sharing, increased sales, music, sales, studies

EU Directive On Orphan Works So Bad It Makes Things Worse

from the how-did-that-happen? dept

Orphan works (or maybe that should be "hostage works") have become a really hot area in the copyright debate. That's because increasing numbers of people have realized how insane the current situation is whereby millions of older works, that are out of print and have no obvious owners, remain locked away because of copyright. This has led to various proposals around the world to liberate them, while still protecting the copyright holders if they later appear and assert ownership.

Among these is the European Union's Orphan Works Directive. Given the size of the EU and the huge number of cultural artifacts that could be freed up by the right kind of legislation, this is potentially a big deal, particularly in terms of allowing works to be digitized and used in new contexts.

Recently, the European Parliament and the European Commission released a so-called "compromise text" (pdf); it hasn't been passed yet, but it's quite likely to. Here's how Knowledge Ecology International (KEI) summarizes its proposals:

The current text of the proposal will not solve problems with orphan works, but may aggravate them. The proposed Directive should encourage conservation and dissemination of orphan works with adequate safeguards for potential right holders, but it fails to do so. On the contrary, it sets unnecessary limitations on potential beneficiaries, does not solve for-profit use of orphan works and establishes an over-regulated mechanism that could suffocate non-profit initiatives. The purpose of the initiative is not to create additional bureaucratic barriers for a wide dissemination of works whose authors and right holders are neither known nor located... but the current proposed language if unchanged will.

Finally, the Proposal may produce unattended consequences by encouraging countries to limit the use of orphan works in their domestic law. If the proposed Directive is as it is today, it could compel country members of the European Union to comply with the standards of the proposal instead of more flexible solution available in their domestic law. In other words, the proposal not only threaten any future positive and more useful development but it may also threaten any current achievement on the matter. This creates an extremely bad precedent on copyright regulation.

Despite years of activities organised and coordinated by the Commission in this area, the proposed Orphan Works Directive is a missed opportunity.

KEI is being diplomatic: the proposed EU Orphan Works Directive is an utter disaster, which actually manages to make the situation worse than it is today. So how did this come about? A clue can be found in an earlier Techdirt story, which reported on a curious 113% turnout during crucial votes of the Legal Affairs (JURI) committee. The topic? Why, orphan works....

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Filed Under: europe, european commission, orphan works
Companies: knowledge ecology international

European Parliament Declares Its Independence From The European Commission With A Massive Rejection Of ACTA. Now What?

from the power-to-the-people dept

In a plenary vote today, the European Parliament has rejected ACTA by 478 votes to 39, with 165 abstentions. That followed a failed attempt by the right-of-center EPP Group to call for a postponement. Although the final result was not totally unexpected, since the signs had been pointing this way for a time, it nonetheless represents a huge victory for campaigners who had more or less given up hope of stopping ACTA in Europe even a few months ago. So the question now becomes: what are the ramifications?

In its closing speech, the European Commission repeated its statement that it would wait for the European Court of Justice's opinion on the compatibility of ACTA with the EU's laws, even if the vote went against it. It also hinted that it might then call for another vote on ACTA in the European Parliament. Whether that was simply a bluff, or whether it will go ahead with this seemingly pointless exercise, is unclear.

David Martin, the EU parliamentarian charged with handling the ACTA vote, said afterwards in a press conference that he did not believe the Commission could simply re-submit ACTA in its present form. Changing ACTA would require agreement from the other ACTA signatories, which is likely to be hard to obtain, but even then Martin was skeptical that ACTA was the right way to address the problem of counterfeit goods. Moreover, the sheer size of the majority against ACTA today means that the Commission can't realistically hope that next time things will go much better. Instead, Martin suggested splitting ACTA into two new and quite distinct treaties -- one dealing with physical counterfeits, the other with online infringement.

Martin also said that he believed that ACTA is dead, and not only in the European Union. For example, he noted that Australia's politicians were having second thoughts even before the EU vote. If, in the wake of today's resounding rejection, Australia also refuses to ratify the treaty, it will leave ACTA looking tattered and hardly the exemplary globe-spanning agreement its supporters have been pushing for. And that's assuming that the US administration can resolve the issues surrounding its own approval of the treaty, and can muster enough ratifications among other signatories so that ACTA comes into force. And as people are already pointing out, if ACTA does collapse, TPP might be next.

The true measure of the effect of the European Parliament's rejection of ACTA remains to be seen; but two things are already clear. The first is a new recognition that European citizens not only care deeply about key issues like freedom and privacy, but that they are keen to engage with politicians on these and related subjects, as the President of the European Parliament acknowledged in a statement after the ACTA vote:

The debate on ACTA demonstrated the existence of European public opinion that transcends national borders. All over Europe, people were engaged in protests and debates. The mobilisation of public opinion was unprecedented. As the President of the European Parliament, I am committed to dialogue with citizens and to make Europe more democratic and understandable.

The second point was noted by David Martin in a blog post published shortly after ACTA's defeat:

This is a historic day in terms of European politics. For the first time the European Parliament has used the powers granted by the Lisbon Treaty to reject an International Trade Agreement. The Commission and the Council will now be aware that they cannot overrun the Parliament, which represents and defends citizens' rights. This vote represents true democracy in action and the coming of age of the European Parliament.

In other words, the rejection of ACTA by the EU is not just a victory for the activists who took to the streets of Europe earlier this year, and the huge numbers of people who contacted their politicians to express their concern: this is also a victory for the European Parliament, which hitherto has been little more than a rubber stamp for the European Commission's proposals.

That has important consequences for the future, since it means that the Commission will need to be more circumspect when dealing with the Parliament. That, in its turn, is likely to lead to more transparency and participation by European citizens in the process of crafting new laws and treaties. In particular, it means that whatever the European Commission comes up with as a response to this major defeat over ACTA, it will not be able to assume that it can always get what it wants. Today's subtle but important shift in power within European politics will also be felt at the international level, since the Commission's negotiators will no longer be able to conduct meetings behind closed doors that fail to take into account what the European Parliament -- and ultimately the people of Europe -- are willing to accept.

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Filed Under: acta, australia, david martin, european commission, european court of justice, european parliament, tpp

EU Commissioner Reveals He Will Simply Ignore Any Rejection Of ACTA By European Parliament Next Week

from the democracy,-what's-that? dept

The day before the EU's International Trade committee (INTA) recommended that the European Parliament should reject ACTA, the EU commissioner with responsibility for the treaty, Karel De Gucht, had given a speech to its members, trying to win them over. Although it was short, it turns out to be highly revealing about the European Commission's future ACTA strategy. Here's what he said:

If you decide for a negative vote before the European Court rules, let me tell you that the Commission will nonetheless continue to pursue the current procedure before the Court, as we are entitled to do. A negative vote will not stop the proceedings before the Court of Justice.

That is, whatever happens next week, the European Commission will wait for the European Court of Justice (ECJ) to rule on whether ACTA is compatible with EU law. If it is found to be incompatible, De Gucht admits that rather than accept this ruling, the European Commission will try to find some trick to circumvent it:

If the Court questions the conformity of the agreement with the Treaties we will assess at that stage how this can be addressed.

This implicitly confirms that the referral was simply a way to buy time, rather than an honest question about ACTA's legality.

Even assuming the ECJ rules eventually that ACTA is compatible, there could still be a problem if, in the meantime, the European Parliament has voted not to ratify it. Here's what De Gucht says he would do in that case:

First, I would consider proposing some clarifications to ACTA. For example on enforcement in the digital environment. We could look at this in the light of the discussions you will have had on legislative proposals which the European Commission is set to put before the Parliament and the Council. Or for example, we could seek to clarify further the meaning of 'commercial scale'.

Remember that ACTA is now signed, and cannot be altered; so De Gucht is instead trying to fob off European politicians with this vague idea of "clarifications" -- as if more vagueness could somehow rectify the underlying problems of an already dangerously-vague treaty. That's clearly just a sop; here's the real plan:

Second, once we will have identified and discussed these possible clarifications, I would intend to make a second request for consent to the European Parliament. Whether the Parliament will consider it under this legislature or the subsequent one, will be for you to decide.

This is an extraordinary admission. De Gucht says that even if the European Parliament unequivocally refuses to ratify ACTA next week, he will simply ignore that result, and re-submit it at a later date.

In other words, De Gucht won't accept the idea that the European electorate, through their representatives in the European Parliament, might possibly want to reject something they were not allowed to know about until late in the negotiating process, and to which they were unable to provide any meaningful input. In his view, ACTA must be passed, and ACTA will be passed -- whatever anyone else thinks about it.

Let's hope that the members of the European Parliament bear in mind this undisguised contempt for the democratic process in Europe -- and for them -- when it comes to voting on ACTA next week, and any time thereafter it might be re-presented to them under De Gucht's shameful plans.

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Filed Under: acta, ecj, european commission, european union, karel de gucht

Fifth EU Committee Recommends Rejection Of ACTA By European Parliament

from the how-many-times-do-we-have-to-say-no? dept

Another major milestone has been achieved in the push to get ACTA rejected by the EU: a fifth parliamentary committee has recommended that the European Parliament should refuse to ratify it when it is put to the vote on July 4th, effectively killing it in Europe. The other committees – on legal affairs, civil liberties, industry and international development – recommended rejection a few weeks ago, but today's vote by the international trade committee (INTA) was seen as the most important.

That was reflected during the vote. For example, the hall in which the meeting was held was unusually full, with a large contingent from the press. Unexpectedly, an EU politician who is not aligned with the main groupings turned up to vote, adding to the uncertainty about the final result.

The main INTA report recommended that the European Parliament should reject ACTA, but three amendments were tabled: two to accept ACTA immediately, and one to recommend waiting until after the European Court of Justice had handed down its judgment -- something not expected for a year or two.

At the last minute, the first two amendments were withdrawn, leaving only the call for a postponement of the European Parliament vote. This was rejected by the committee; but then somebody pointed out that there were more votes than people -- a problem EU committees have had before. This meant that that the vote had to be taken again, adding to the already-high tension in the meeting, to confirm that the amendment was indeed being rejected.

Finally, the INTA committee voted on the report containing the recommendation to reject ACTA, and passed it by 19 votes to 12. That was a wider margin than expected, but isn't necessarily representative of what will happen in the plenary vote in July. The European Commission will be making one last effort to convince EU politicians to vote for ACTA, and lobbyists will doubtless be out in strength during the next two weeks.

Gaining the support of five EU committees out of five is an extraordinary achievement -- six months ago, most commentators expected ACTA to sail through the European ratification process without much trouble. European politicians themselves have said that this change of heart is entirely due to the massive wave of protests against ACTA, both on the streets and in the form of thousands of emails and phone calls.

Although the battle is not over yet, it will be hugely significant if such citizen action does succeed in stopping ACTA, since it would send a message to politicians that the views of the public cannot be ignored when it comes to such major policy decisions about the Internet. In this respect, it would complement the similar revolt over SOPA and PIPA in the US -- something that made the current string of European victories against ACTA possible.

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Filed Under: acta, european commission, european parliament, european union, inta, pipa, sopa

Double Standards: EU Commissioner De Gucht Is 'Innocent Until Proven Guilty'; EU Citizens Are 'Guilty Until Proven Innocent'

from the one-law-for-the-rich,-one-law-for-the-poor dept

The Belgian EU Commissioner Karel De Gucht is the driving force behind ACTA, and is apparently really keen to combat crimes like counterfeiting and piracy. It also seems he has a slight problem with the tax authorities:

Belgium’s Tax Inspection Service has accused European Commissioner Karel De Gucht of tax fraud. The service says that Mr De Gucht and his wife failed to declare the profit that they made on the sale of shares of the Vista group on which tax was due.

"Politician accused of tax fraud" is hardly news; but what is more interesting is the European Commission's reaction. Here's what it said according to the Dutch language version of the story on the site quoted above:

The Commission adds to this that De Gucht "not guilty until proven to the contrary."

Of course, you might say; after all, surely everyone is innocent until proven guilty? In fact, no:

A Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement

Note the word "allegedly" -- not much presumption of innocence there when your details must be disclosed "expeditiously." That comes from Article 27 of ACTA, currently being pushed by the European Commission with all its might in a desperate attempt to get it ratified by the European Parliament next month.

So on the one hand, we have someone who allegedly failed to declare profits of 1.2 million euros (about $1.5 million), and who must be assumed innocent; while on the other, we have someone who allegedly infringes on someone's copyright -- perhaps by sharing a single mp3 file -- and who, by contrast, is assumed guilty. Double standards much, European Commission?

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Filed Under: acta, belgium, european commission, karel de gucht, tax fraud

EU Politicians Snub European Commission: Do Not See IP Protection As Key To Internal Security Strategy

from the ACTA-backfires dept

One of the most dishonest aspects of ACTA was its attempt to equate genuinely dangerous products like fake medicines with totally harmless ones like unauthorized digital copies. Fortunately, that's such an absurd equivalence that more and more people have voiced their concerns over it -- including the Liberals and Democrats in the European Parliament, who cited it as one reason why they would be voting against ACTA:

ACTA wrongly bundles together too many different types of IPR enforcement under the same umbrella, treating physical goods and digital services in the same way. We believe they should be approached in separate sectoral agreements, and following a comprehensive and democratically debated mandate and impact assessment.

EDRI points out that the European Commission has just suffered a major defeat at the hands of the European Parliament thanks to this lazy kind of coupling in its proposed "Internal Security Strategy" (ISS) for Europe:

In a piece of what the Commission appears to have believed to be a piece of masterful political syllogism, it explained in its Internal Security Strategy (adopted at the end of 2010) that dangerous counterfeit goods are a threat for human health. These counterfeiting offences are infringements of intellectual property rights (IPR). "Piracy" is also an infringement of intellectual proprety rights. Consequently, the fight against "counterfeiting and piracy" must be included in the EU's Internal Security Strategy.

This is part of the wider strategy, as seen in ACTA, to treat all IPR as if it were the same, with dangerous medicines being considered as important as unauthorised downloading and vice versa. The obvious problem, as has become obvious in the ACTA, is that treating serious and trivial infringements as if they were of equal importance will inevitably result in either the serious infringement being treated as if it were trivial or vice versa.

But something that might have been simply waved through before ACTA has now been met with skepticism:

The European Parliament, however, far more sensitive now to the questionable approach of the European Commission to intellectual property rights as a result of the ACTA discussions, recognised this crude attempt to push its so far unsuccessful approach to an even higher level of hysteria. Whatever else one can say about downloading a song without authorisation, the number of deaths that it is likely to cause is, we believe, comparatively low.

As a result, and by a huge majority, the members of the European Parliament adopted a resolution on the ISS that includes the following major slap-down for the European Commission:

...it does not appear fully justified or appropriate to take action in the field of the enforcement of intellectual property rights – a matter which is part of a specific in-depth debate – within the framework of the ISS;

That is a noteworthy refusal, and suggests that ACTA's attempt to lump online sharing with counterfeit medicines, and to make them subject to the same severe civil and even criminal sanctions, has backfired badly. It might be too much to take this ISS snub as an indication of what will happen when the European Parliament votes on ACTA later this summer, but it certainly suggests a new-found wariness in this area.

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Filed Under: acta, edri, european commission, european union

'New' ACTA Version Published, EC Pushes For Signing

from the and-here-we-go dept

There hasn't been much movement in the last few months with ACTA, though there's been plenty of scrambling behind the scenes. The latest is that a "new" final draft of the document has been released, though all it really appears to have changed is the signing period. But, more important, is the news that the EC is pushing really hard to get it signed:

The European Commission is piling on pressure for ACTA (Anti-counterfeiting Trade Agreement), and is quietly preparing a legal proposal for the EU to sign it. The news comes in the context of ongoing discussion in the European Parliament on the question of whether to obtain a legal opinion on ACTA's compatibility with the Treaties.

In its recent Communication on IPR Enforcement, the Commission suggests it is a fait accompli that the EU will sign ACTA in 2011. Indeed that all of the countries involved in the negotiation will sign.

However, the European Parliament, which has been much more skeptical of ACTA from the beginning, is apparently still skeptical, and would like to take the shocking step of actually making sure that ACTA doesn't go against existing EU laws. The EC has simply declared that it is, and would rather that the Parliament not actually confirm this. Hopefully, the Parliament doesn't cave in to EC pressure, and actually takes the time to make sure that anything it signs is appropriate.

Filed Under: acta, eu parliament, europe, european commission