Many Of The Countries Negotiating ACTA In Secret Saw Their Corruption Perception Increase

from the if-the-perception-fits... dept

While there are certainly many other factors that go into such rankings, Jamie Love points us to the news that many of the countries negotiating ACTA in secret over the past few years have had their perceived corruption ratings increase. Transparency International famously puts out its Corruption Perceptions Index each year, highlighting how people view their own governments in terms of corruption. Again, obviously, there are many other factors that go into such ratings, but it does seem rather telling that so many of the countries that have very publicly hid behind bogus claims to avoid publicly discussing an agreement that will impact many people, are somehow viewed as more corrupt than in the past.

Now, I should note that Love says that 34 of the 37 participants had their corruption perception increase (the blog post claims only Morocco, Japan and Canada had better ratings), but that's not actually the case. First, I believe they missed Singapore, which also had a slightly better rating. Separately, 27 of the 37 countries are lumped together as "the EU," which apparently negotiated as a single entity. However, if you go through all 27 EU countries, it is worth noting that six of the 27 show slight improvements in their corruption perception, and another five stayed flat. Still, that does mean that 15 of the 27 EU countries did appear more corrupt. That said, since the EU negotiated as a single entity, it's a little tricky to judge how ACTA negotiations reflected on any individual country. For example, with a country like Malta, did anyone there really even care about ACTA? Separately, it's worth noting that many of the changes are small, and perhaps within the margin of error on such a rating system.

Either way, at the very least, it can be suggested that the majority of countries involved saw their ratings get worse -- and that's especially true of the countries that were heavily involved in the negotiations.

One quick note: it's a bit confusing but the Corruption Perception Index measures on a 0 to 10 scale, with 10 being "clean" and 0 being "highly corrupt." So, when I claim, above, that their "perceived corruption ratings increased," it means the score on the corruption scale declined. In other words, a decline in the Corruption Perception Index actually means an increase in perceived corruption (which suggests the index is misnamed somewhat...).

Filed Under: acta, corruption, politics

How ACTA Turns Limited Secondary Liability In Copyright Into Broad Criminal Aiding & Abetting

from the uh-ohs dept

We've noted that one of the serious problems with ACTA is the fact that it locks in this idea of secondary liability in copyright law, making it such that third parties can be liable for actions of their users' infringement in certain cases. Secondary liability in copryight law is caselaw driven. Congress had a chance a few years back to put "inducement" into copyright law with the INDUCE Act, but chose not to. So I find it strange that the courts have simply interpreted copyright law to include such an inducement standard anyway. One of the problems with ACTA is that it takes this highly dynamic part of the law, and effectively locks it in, such that Congress cannot tell the courts it made a mistake, should it decide to do so.

However, some are noticing that it's actually even worse than that. While I already disagree with the court's interpretation of various forms of secondary liability, at least they've included some safeguards in terms of what standards need to be met before secondary liability might apply by looking at things like whether or not there are substantial non-infringing uses and whether or not there's intent or knowledge. Unfortunately, it looks like ACTA partly seeks to wipe these out by changing these more nuanced standards into a simple "aiding and abetting" standard, which could lead to criminal infringement claims. As we've already noted, ACTA has already broadened the definition of "commercial scale" in order to increase criminal liability for infringement, but law professor Michael Carrier's analysis suggests the "aiding and abetting" language also greatly broadens the liability for secondary liability as well:

Any party that plays a role in assisting infringement could be liable for criminal liability. The identity of such parties is worrisome: Personal computer manufacturers. Electronic device makers. Search engine operators. Each of these entities could play a role, however indirect, in contributing to copyright infringement.

Although copyright's secondary liability law is not a model of clarity, courts have sought to ground its elements in balanced policies. Judicial tests have asked if devices have noninfringing uses (Sony). If the party has knowledge and materially contributed to the activity (contributory infringement). If it has a financial interest and the right to control (vicarious liability). If it has an intent to induce infringement (Grokster).

Aiding-and-abetting liability lacks such nuance. It is borrowed from criminal law. And it is used to punish those who assisted in the crime. The getaway driver. The fraudulent check presenter. The cocaine distributor. In the criminal law arena, such liability reaches broadly to deter true criminal conduct.

In the context of secondary copyright liability, in contrast, such a standard is not appropriate. Not when copyright is subject to competing public policies. Not when technologies could be held criminally liable for allowing search, performance, or retrieval. Not when these monumentally significant issues--which would dramatically expand U.S. liability--were never even debated.

Yet another reason why ACTA is so troubling. And, of course, if there had been any serious public consultation on the document before it hit its "near final version," these are the sorts of gross mistakes the USTR could have avoided.

Filed Under: acta, aiding and abetting, copyright, secondary liability

India Concerned How ACTA Changes Previous Trade Agreements

from the protests-getting-heard dept

We've pointed out in the past, that one of the reasons why ACTA was done outside of the existing infrastructure for such agreements set up under WIPO and the WTO was to craft an agreement without involving the BRIC countries (Brazil, Russia, India and China). The negotiators knew, quite well, that the BRIC countries would fight back strongly, as all four have used the ability to copy to create economic growth, and have recently been much more vocal in pushing back about some of the more annoying parts of earlier agreements on intellectual property. Now, the ACTA negotiators keep talking about how they'd like the BRIC countries to join "someday," but by creating ACTA outside of the WTO, they've been able to leave those four powerhouses totally out of the negotiations, so that if they ever join, it'll be a total "take it or leave it" situation.

Thankfully, those countries are expressing their concerns about the whole thing. Earlier, we noted that Brazil had come out and declared ACTA "illegitimate." Now it's India's turn. At a recent WTO meeting, India (rather politely) appears to have expressed its serious concerns about the "far reaching implication" for those who are not part of ACTA. The link above lists out many of those concerns, but one key one is how ACTA appears to have redefined "commercial scale," contrary to what the WTO has said constitutes "commercial scale."

We call attention to the fact that ACTA negotiators have decided among themselves to overturn the decision of the WTO dispute settlement panel in the recent China-Enforcement case by reinterpreting the phrase "commercial scale" with respect to willful trademark counterfeiting and copyright piracy so as to refer to any activity carried out for a direct or indirect economic or commercial advantage. This is startling in light of the WTO panel's contrary decision that the term "scale" refers to a level of activity, and it highlights the risk to WTO law posed by turning enforcement matters over to small groups of plurilateral negotiators operating outside the WTO legal framework.

India is also pointing out that the negotiators involved in ACTA appear to have exaggerated the "threats" involved (something we've pointed out for years, but it's nice to see it called out in an international forum):

To find an effective and enduring solution to the problem, we need to step back from a purely mercantilist approach. We also need to avoid exaggerating the issue of counterfeiting and piracy since there is lack of empirical data. Even the US Government Accountability Office (GAO) has recently raised serious questions concerning the data that has been relied on by proponents of the ACTA to support the effort.

This is also the first time I've seen anyone else actually point out that ACTA is, very much, a mercantilist (protectionism) approach.

Filed Under: acta, india, trade agreements

Group Of Prominent Law Professors Urge President Obama To Halt ACTA Endorsement

from the probably-too-late dept

A group of rather prominent law professors have sent an open letter to their former law professor colleague, now President, Barack Obama, asking him to "halt [his administration's] public endorsement of ACTA and subject the text to a meaningful participation process that can influence the shape of the agreement going forward." There's lots of good stuff in the letter, though I doubt it will make much of a difference. It highlights how the whole process left the public out of the discussions, contrary to Obama's promises. Furthermore, it explains why the agreement should be subjected to Congressional scrutiny, rather than just being signed as an "executive agreement," noting that, beyond the parts of ACTA that appear to conflict with US law, the President is not supposed to have authority over intellectual property issues:

The use of a sole executive agreement for ACTA appears unconstitutional. The President may only make sole executive agreements that are within his independent constitutional authority. The President has no independent constitutional authority over intellectual property or communications policy, the core subjects of ACTA. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property. ACTA should not be pursued further without congressional oversight and a meaningful opportunity for public debate.

The letter also points out that, beyond just the secrecy, the entire concept of ACTA is being "deliberately misrepresented to the American people."

The treaty is named the "Anti-Counterfeiting Trade Agreement". But it has little to do with counterfeiting or controlling the international trade in counterfeit goods. Rather, this agreement would enact much more encompassing changes in the international rules governing trade in a wide variety of knowledge goods -- whether they are counterfeit or not -- and would establish new intellectual property rules and norms without systematic inquiry into effects of such development on process of economic and technical innovation in the U.S. or abroad. These norms will affect virtually every American and should be the subject of wide public debate.

Chances of this letter having much of an effect are slim, but it certainly does highlight the growing concerns that ACTA has serious problems among folks who actually understand this stuff .

Filed Under: acta, constitution, law professors, president obama, transparency

US Basically Says It'll Ignore Anything In ACTA That It Doesn't Like... So How About Everyone Else?

from the ignore-away dept

It's been amusing to watch supporters of ACTA who repeatedly claim that it's not going to matter if ACTA actually disagrees with US law, because, as an executive agreement (rather than a treaty) it "can't" change US law. Of course, they ignore the history of such things, where suddenly lobbyists start talking up our "international obligations." But, it appears some in the US are now claiming that Article 1.2 provides something of a giant loophole, where it states:

"Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice."

We've even had people in our comments highlight that section, as a clear indication that each country need not change its laws. And some of the US negotiators are specifically using that clause to say that it can sign the current agreement and then point to that clause to ignore whatever they don't like in ACTA. Of course, this response has some scratching their heads. If the US can point to that clause an opt out of any clause that they don't like why can't other countries do the same? And, if it's true that any country can use that clause to effectively opt-out of anything they don't like in ACTA, what's the point of ACTA in the first place?

Of course, the reality, again, is that it's because down the road, when everyone's forgotten the promises that ACTA won't change anyone's laws, the lobbyists will step in and do the whole "international obligations" bit. What's amusing to me is that the very same commenters on our site who insist that ACTA cannot change US law, and who have pointed to Article 1.2 as proof, were also the very same folks in our comments a few months ago pointing to the demands that Canada change its copyright laws by claiming "international obligations" concerning WIPO/TRIPS -- even though WIPO/TRIPS, similarly, is supposed to let each country set up its laws "within its own legal system and practice."

It's basically all a shell game: say whatever you can to get the damned thing signed, knowing that after it's signed, it'll be much easier to apply lobbying pressure down the road.

Filed Under: acta, eu, laws, us

Death Of ACTA

from the sing-along dept

As promised in our case study on Dan Bull, he's now released his latest song, entitled Death of ACTA. Better yet, the video was filmed on an actual pirate ship: And, of course, you can download and share the MP3 freely, and if you want his album you can download that too (or pay him for it, if you'd like). The full lyrics are reposted after the jump as well...

Filed Under: acta, dan bull, gallo report, music

Would US Officials Really Decide Not To Sign ACTA?

from the or-is-that-for-show? dept

Well, here's a bit of a surprise. We had just been saying that of course the US would sign onto ACTA, but apparently it's no sure thing. Jamie Love, who is pretty well connected with what's going on with ACTA, mentioned on Twitter that US officials are seriously considering dropping ACTA, after "losing" to the EU on the question of whether or not patents would be included. The US did not want patents in ACTA, while Europe did and Europe has likely won that battle. While the US is still pushing for them to be taken out, it seems unlikely at this point. Because of that, US officials are apparently honestly thinking about not signing. Love does note that Stan McCoy, who led the negotiations, isn't too worried about the patent issue, but others in the administration believe it's a big deal.

This is definitely news -- though, in the end I still can't see the US bailing on ACTA. The USTR has been so involved in the process, and has been so self-congratulatory all along with this latest draft, that it would be a huge political letdown not to sign the document. My guess is that it will get signed (and the US will be among the first to sign it), with those involved suggesting that we'll just ignore anything we don't like (as we've done in the past on other international agreements). Still, wouldn't it be something if the US actually bailed out on ACTA?

Meanwhile, apparently in an effort to highlight just how screwed up the whole ACTA process is, the US Patent and Trademark Office, which has been heavily involved in the ACTA negotiations with the USTR as well, has apparently refused to meet with concerned individuals about ACTA until after it's signed. This is how the US government listens to stakeholers? "We'll only talk to you after it's too late to fix?" Comforting.

Filed Under: acta, copyright, patents, us

More Countries React To ACTA; Brazil Says ACTA Is Illegitimate

from the act-now dept

We've already covered how the EU Parliament is skeptical of ACTA. Ditto the Mexican Senate. In the US, which will undoubtedly sign the agreement, at least some politicians are asking questions about the document. Now news is coming out in a few other countries as well. Down in Australia, unlike in the US, they're planning to go through a full scrutiny process involving the Parliament and the public. On the flipside, it sounds like Singapore can't sign the document fast enough.

Of course, what may be most interesting is how countries who are not a part of the negotiations feel about this. Many people feel that the whole ACTA process was set up outside of WIPO and the WTO in order to avoid having to deal with the BRIC countries (Brazil, Russia, India and China), which are all developing rapidly, and have a very different viewpoint on intellectual property than the countries involved in the negotiations. So, it's interesting to see that Brazil has already slammed the agreement (Google translation from the original Portuguese). A Brazilian official said that the agreement was not legitimate, negotiated by a closed group without considering all of the issues at play.

ACTA negotiators have said that they hoped, after their own countries agreed to sign onto ACTA, that the BRIC countries would follow down the road. Of course, if they wanted that to happen, perhaps they should have asked them to join the discussions. But, what would that accomplish, since the goal appears to have been to keep many stakeholders out of the negotiations, rather than being inclusive.

Filed Under: acta, australia, brazil, negotiations, signapore

Where ACTA Disagrees With US Law

from the but-they-promised... dept

With Senator Wyden asking the Congressional Research Service to investigate how ACTA might conflict with US law (or restrict the ability to reform the law), KEI has put together a list of specific areas where ACTA's text is inconsistent with US law. Remember, negotiators have repeatedly insisted that nothing in ACTA will (or even can) change US law. ACTA defenders have stressed the point, repeatedly, that nothing in ACTA can legally change US law. But what no one explains is what happens when the law and the agreement are in disagreement. That's because no one wants to deal with the inevitable: when such situations come about, US lobbyists will scream about how we're "not meeting our international obligations," and will put plenty of pressure on the US until we get into "compliance." So, I'm wondering if those who insist ACTA won't change US laws will agree now to speak out against anyone who cites ACTA down the road in asking for US law to change?

Filed Under: acta, copyrights, patents

How ACTA Turns Private, Non-Commercial File Sharing Into 'Commercial Scale' Criminal Infringement

from the this-is-not-good dept

We've already discussed some of the problems of the "near-finalized" draft of ACTA, but the deeper people dig into the agreement, the worse it gets. We had noted, in our original post, that the definition of "commercial scale" matters a lot, and Glyn Moody points us to an analysis that shows how the ACTA negotiators cleverly scaled back their definition of "commercial scale," to make it both vague and incredibly broad. The current text in ACTA reads:

ACTA 2.14.1: "Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. [ACTA footnote 9]

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."

"Carried out as commercial activities for direct or indirect economic or commercial advantage." Could you be any more inclusive than that? We've recently discussed how the borderline between commercial and non-commercial use can sometimes be very difficult to distinguish. Under ACTA, it appears that when in doubt, it's commercial scale.

Of course, what's really troubling here is that the EU negotiators had already promised that there would be no definition of "commercial scale." Yet, there is... and it's a lot worse than what the EU Parliament had already determined "commercial scale" to cover. The analysis linked above, first looks at the Max Planck Institute's analysis of "commercial scale" infringement, where it notes that just saying "commercial scale" "fails to provide for an appropriate and sufficiently precise definition of the elements of a crime" under the current laws of the EU. Instead, it says such actions can only qualify as a crime if the following conditions are met:

• Identity with the infringed object of protection (the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion [construction, assembly, etc.]).
• Commercial activity with an intention to earn a profit.
• Intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right.

Note that none of that is found within the ACTA definition. The report also highlights the EU Parliament's own definition of commercial scale, which has important caveats not found in ACTA:

"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

Notice how the ACTA negotiators conveniently left out the exclusion at the end. So for all the talk of how the new ACTA would only focus on "commercial scale" infringement, by subtly changing (mostly via omission) the definition of "commercial scale," ACTA now covers an awful lot that most people would not, in fact, consider to be "commercial scale." We'll leave it as an exercise to the reader whether these omissions were done through incompetence or for other reasons.

Filed Under: acta, commercial scale, criminal, definitions