ACTA Negotiators Don't Seem To Know Or Care About What They're Negotiating

from the that-is-downright-scary dept

With the latest round of ACTA negotiations going on this week in Washington DC, following pressure from various public interest groups, a hasty lunch was organized that was apparently quite informal. Attendees from the event have been posting their notes, and there are a few interesting tidbits. James Love notes that US negotiators don't seem to realize or care that ACTA goes against US law, as they note that the US will just ignore the parts that don't mesh with current law. Other countries are probably out of luck though:

The U.S. negotiators at the ACTA meeting have, over the past year or so, been remarkably indifferent to the fact that the US positon in the negotiation runs counter to about a dozen U.S. statutes where remedicies are now limited by statute, contrary to the plain language of the ACTA text advanced by the U.S. government.

At the lunch meeting the U.S. negotiators explained the reason for this -- they said it was obvious that regardless of what the ACTA provisions say, the U.S. can ignore the provisions in cases where there are statutory exceptions. "It is not necessary to say that in the ACTA text" I was told. "It's obvious."

At the lunch there was discussion among the Australian, Japan, US and Singapore negotiators over this issue. Some delegates pointed out that the U.S. had spent a lot of time talking about the fact that this was an executive agreement, and therefore "could not" change U.S. law. Therefore, they argued, it was understood that ACTA would grandfather in any inconsistency between U.S. law and ACTA. People were not so sure how this worked for other countries in the negotiations -- including those where the ACTA provisions would clearly require changes in national laws, if taken seriously. Some delegates indicated that it was hard to understand what ACTA meant, at this point, given the many brackets in the text, and a lack of understanding about how the "general" and "high level" provisions of the ACTA would apply to a country's actual laws. Other delegates said the issue of exceptions to ACTA obligations, while important, had not really been addressed in the negotiations.

Yes, it appears we're negotiating an agreement where the US isn't too concerned with the fact that it goes against key points in US law because we'll just ignore the parts we don't like. But, you can bet that we'll put massive pressure on any other country that tries to do the same. And, when there's any discussion of improving US law, we'll be told we can't, because of our "international obligations" under ACTA.

As for that last point about how "it's hard to understand what ACTA meant" at this point, Michael Palmedo from American University sent over his notes from the meeting, which I've published below with permission. The key scary point in his notes was that the top European negotiator, Luc Devigne, doesn't seem to realize or care that this is supposed to be an "anti-counterfeiting" agreement, but insists it's an "intellectual property agreement." Perhaps they should rename it, then. Here was the key part:

Luc Devigne (Head EU Negotiator) is gung ho that patents will be in. He thinks that medicines have been addressed and therefore medicines are not an issue. He asked more than once how you could have an 'IP Enforcement' treaty and not include patents - and dismissed suggestions that ACTA was specifically an 'Anti-Counterfeiting' treaty rather than a broader enforcement treaty.

When you compare both of these points from Palmedo and Love, what you come up with are negotiators who are negotiating an agreement without much concern for what the agreement is supposed to be about or what it will actually do. That's downright scary.

Anyway, we've included Palmedo's full notes after the jump, so click on through if you want to read the differing views on patents, safeguards and key issues like access to medicine.

Filed Under: acta, copyright, intellectual property, negotiators

USTR's Funny Definition Of Transparency: Next ACTA Negotiations Still Shrouded In Secrecy

from the transparent-as-mud dept

The USTR keeps claiming that it's being as transparent as possible when it comes to ACTA negotiations, but there's simply no evidence to support that at all. It worked hard to keep ACTA secret for as long as possible, and used transparency as a bargaining chip at the last ACTA negotiations (which is why no draft was released -- though it was leaked). For a while now, there have been reports that there was to be a meeting in Washington DC next week between US and EU ACTA negotiators to try to hash out their differences -- which are apparently a key hurdle at this point.

However, the whole thing has been shrouded in secrecy. The USTR hasn't even said where the meetings will be held, who's attending or what the agenda is -- things that most other countries hosting these negotiations have released at least a week in advance. The latest report is that, contrary to earlier claims, this meeting will include more than just EU and US negotiators, so it's sounding more like a full negotiation. And yet... no one's really sure, because the supposedly "transparent" USTR isn't saying a word. Of course, as with all things ACTA, the more the USTR stays quiet, the more things leak: so a proposed agenda has leaked, and it certainly looks like a pretty thorough negotiation, rather than just the proposed "hash out EU/US differences" sort of thing. But, it's worth noting that the very last item on the list of things to be discussed (well, before "press release") is "transparency." I guess that's the USTR's version of transparency: don't tell anyone anything, but talk about transparency at the meeting.

Filed Under: acta, negotiations, transparency
Companies: ustr

EU Data Protection Body Points Out That ACTA Violates EU Data Protection Rules

from the no-legal-changes? dept

Hephaestus was the first of a few of you to point out that the EU advisory body in charge of making sure various European laws comply with EU data protection and privacy regulations has slammed ACTA for violating those rules and violating "fundamental" privacy rights. So much for the claims that ACTA won't go against EU law, huh? The report is pretty damning, and shows growing opposition across a wide spectrum of groups in the EU. And we're hearing growing protests in the US as well, even from groups that support stronger intellectual property. There are more and more indications that the farce that is ACTA may finally be starting to crumble.

Filed Under: acta, eu, privacy

EU ACTA Negotiator Removed From Negotiations [Updated]

from the what's-it-mean dept

Not much in the way of details, but a week after EU negotiators briefed the EU Parliament on ACTA, the head EU negotiator, Luc Devigne, is apparently out of that role. There's some speculation that perhaps (hopefully?) this means that the European Commission is finally losing its enthusiasm for ACTA, due to the growing opposition around the globe. Considering that the key debate points are between the US and the EU, it'll be interesting to see what this shakeup means for the next round of negotiations (to take place next month in DC). Update: Jamie Love is now clarifying his original report, saying he received a phone call saying that while Devigne has taken a new job, he'll continue negotiating ACTA for the time being.

Filed Under: acta, eu, luc devigne

Looking At The Details Of The Released Leaked ACTA Draft

from the still-doesn't-look-good dept

It's been a few days now since the latest draft of ACTA leaked, and people are looking through it in detail. Michael Geist has a very detailed take on how the stumbling blocks appear to be a fight between the US and EU negotiators over how broad ACTA should be. Believe it or not, the US negotiators are the ones trying to limit it by taking out patents and limiting the scope to "just" trademark and copyrights. Of course, even that seems to go too far. If this is an anti-counterfeiting agreement, it should be limited to trademark, which is what counterfeiting is about. The European negotiators, however, are pushing to include all intellectual property.

Of course, the US has its own problems as well, in that it appears to be using the transparency issue as a negotiating ploy. That is, despite all the ridiculous claims from the USTR that it supports ACTA transparency, it appears to be telling negotiators it will only allow transparency if it gets what it wants. How very childish. Meanwhile, KEI is pointing out that (again, despite claims to the contrary), ACTA's text (pushed by the US) on injunctions appears to contradict US law, by taking out the exceptions and limitations.

Over in the EU, some have pointed out that EU Commissioner De Gucht appears to have lied to the EU Parliament in his briefing on ACTA. During that briefing, he apparently claimed that there will not be a definition of "commercial scale" in ACTA. But, in the leaked text? There is, in fact, a definition. And, part of the language was contributed by EU members. Nice work.

Meanwhile, Glyn Moody points us to an analysis of the document that shows how the wording for sections on third party liability and on damages would almost certainly require a change to existing UK law (and, I would argue, would lock in certain aspects of US law). These are the same points that have been raised before, but are brushed off by ACTA defenders who insist that, technically, ACTA can't force the US to change its law. This is weaseling out of the issue. That it can't, by itself, require such changes, doesn't mean that it won't be used, forcefully, as the lever to force those changes. At the same time, it would lock in highly dynamic aspects of case law, such as third party liability, that haven't actually been reviewed by Congress. That's problematic because (in theory) Congress could decide to change the laws on third party liability. But with ACTA in place, we'll immediately hear screaming about our "international obligations."

Update: A few folks have sent over another detailed analysis of the new leak by Kim Weatherall, who compares it to the previous draft. Definitely worth reading.

Filed Under: acta, details, draft

If Negotiators Still Don't Want To Release ACTA, It'll Still Get Leaked

from the leaky-old-boat dept

So, we now know for certain that the ACTA negotiators' promise of "transparency" over negotiations was an outright lie. They fought it every step of the way, falsely claiming that if the draft were public, some members would leave the table. It was only after a pretty massive smack down from the EU Parliament and the fact that the draft was already leaked that negotiators finally agreed to release a draft that left out lots of pertinent information.

But what was most interesting is how negotiators have acted since then. First, they pretended that the released draft proved all the complaints about ACTA were unfounded, but the details showed something quite different, which has even supporters of stronger intellectual property crying foul.

And how have negotiators responded? Rather than living up to their promises of transparency, they've gone back into secrecy mode. They admitted that the draft release was a one time deal, which was made even clearer when the last meetings concluded without a release of the new draft -- and not even a mention of the fact that they wouldn't be releasing it.

Of course, this is the internet age, and keeping stuff secret tends to backfire badly. Via Michael Geist we've learned that the latest ACTA draft has been leaked once again. You can read it below: Clearly, some of the parties involved in the negotiations agree that the drafts should be public, and the more some (we've heard it's mainly the US negotiators) want to keep the document secret, the more ridiculous they look. What's even more ridiculous, of course, is how the US negotiators keep denying reality. They claim they're being transparent, when they're not. They claim that the release answered all questions, when it clearly did not. They claim that the concerns of various groups are unfounded, but have failed to respond to their questions. It's as if they think that as long as they keep saying stuff, someone somewhere will believe them. That's not quite how it works.

Filed Under: acta, leaks, negotiations

Not Very Transparent: EU ACTA Negotiators Present To EU Parliament In Secret

from the where's-the-latest-draft dept

The EU Parliament made it quite clear back in March that it was not happy with what EU negotiators were pushing for within ACTA, and also not happy about the serious lack of transparency in the process. In response, ACTA negotiators finally released the text, but hinted that this was a one time deal, and now we're back to secrecy. Indeed, after the latest negotiations, no new text was released. Hell, it wasn't even mentioned.

Now, even more disappointing are reports that the EU negotiators have gone to discuss the matter with the EU Parliament, but would only do so in secret, forbidding those in attendance from telling anyone what was discussed. In other words, for all the talk of openness and transparency, it appears it was all a bluff. They showed one (incomplete) draft, and went right back to secrecy. It's as if they thought that people asking for transparency could be fooled by a quick glimpse.

It turns out that there were actually two separate meetings held for MEPs, with the first one being secret, and the second one being open. Some of what happened in that second meeting is now being reported in the press, with the EU negotiators insisting they won't fall for "US hypocrisy," within ACTA (whatever that means) -- but refusing calls by MEPs to make the draft public again. It's still not at all clear what was said in the first meeting.

Filed Under: acta, eu, negotiations, transparency

Even US Intellectual Property Organization Concerned About ACTA Being Too Broad & Changing US Laws

from the that's-not-how-it's-supposed-to-work dept

While those involved in the ACTA negotiations have mocked the concerns raised about the ACTA draft, and said that those who are complaining are merely repeating "wild internet rumors." Of course, we've seen that's not the case at all. A recent filing about ACTA, put together by a bunch of industry groups, highlighted many of the very real problems with ACTA. Of course, ACTA defenders still dismissed this, because they claimed that the report came from those industries who benefited from weakened IP laws.

I wonder how they'll try to belittle this one. The Intellectual Property Owners Association (IPO) recently sent its own letter to the US government complaining about the scope and specifics of ACTA (pdf). The Intellectual Property Owners Association is not exactly the sort of organization you can accuse of wanting weaker intellectual property. It's also not an organization that I agree with very often (as you might imagine). But, in this letter, the group points out that ACTA appears to be way too broad and that, contrary to claims from ACTA negotiators, it seems clear that it would require changes to US law.

The letter first points out that ACTA should focus on the real problem of counterfeiting, but that the language (without any good reason) is made much broader with a focus on all "intellectual property":

As currently drafted, given the expansive use of the broadly-defined term "intellectual property," ACTA goes far beyond addressing the subject matter of counterfeiting. This broad definition encompasses issues that are most appropriately handled as civil infringement causes of action in most jurisdictions around the world, and especially so in the case of the United States.

Separately, the letter goes on to highlight multiple cases where ACTA would, in fact, change US law:

We believe ACTA potentially changes United States law by transforming what are the commonly occurring non-counterfeit-types of civil action infringements into activity that is to be punished under federal criminal law.

Among the examples of how it changes US law as currently written is the following:

ACTA is unwittingly broadening the scope of the seizure power of Customs and Border Patrol forces to encompass civil action trademark infringement and raising the specter of potential abuse in many countries around the globe. The determination of whether marks are similar and whether there is a likelihood of confusion should not be conducted hastily and in an ex parte manner by a border official, but should instead be based upon the appropriate legal analysis (possibly resulting from extensive pre-trial preparation and discovery where allowed).

Elsewhere, it notes that other language choices in the document clearly turn civil infringement into criminal infringement, and that it potentially makes keyword buying on trademarked terms on search engines infringing (even as US courts have mostly found that it is not infringing). As a final recommendation, the IPO suggests that ACTA actually be about what it's supposed to be about, which is counterfeiting:

Thus, IPO urges USTR to review ACTA to ensure that the scope of the Act is appropriately limited to its stated purpose of addressing the limited, though important, subset of infringement known as "counterfeiting."

So here we have a major pro-intellectual property trade group complaining about the scope and nature of ACTA -- and specifically highlighting that it will change US law, despite insistence by negotiators that it would not. Are we now going to be told that the Intellectual Property Owners Association is a "front" for the anti-IP interests, as we were told about the groups who signed onto that last anti-ACTA document? In the meantime, on the question of whether or not it will change laws, it's worth noting that both the US and the EU keep insisting that ACTA won't change any laws (which makes some people question why it's being done at all). Glyn Moody points us to a recent note from the EU negotiators insisting that ACTA won't change EU law either (despite pretty clear evidence that it would). Yet, other negotiators have admitted that some countries might need to change their laws, but won't say who. It must be Morocco...

Filed Under: acta, copyright, counterfeiting
Companies: intellectual property owners association

WIPO Worried About Why Countries Feel They Needed ACTA Process Outside Of WIPO

from the routing-around dept

Earlier this year, in discussing ACTA, some observers noted that it was quite telling that those involved in the ACTA negotiations were clearly routing around WIPO, the organization that was already in place to deal with those kinds of discussions. The explanation was that the negotiators were upset that the copyright holders no longer had full control over the WIPO agenda, and WIPO had dared to let consumer rights groups into the discussion. So the purpose of ACTA was to get around having to include such groups. It appears that WIPO, itself, is quite concerned about what's going on with ACTA, suggesting that he's worried that these countries no longer believe the WIPO process works.

"A number of countries feel [there is] an important area of public policy they are not able to address in a multilateral forum, and so have gone outside the multilateral framework to satisfy their desire for creating some form of 'international' cooperation," Gurry told Intellectual Property Watch in an interview last week. "That's the challenge, for us. And whether it concerns enforcement, ACTA, or any other area, that, on the whole, is a bad development for a multilateral agency, that member states start to do things outside."

I'd argue that he's being a bit too hard on himself. It's not that the WIPO process doesn't work (though, I do have some problems with the WIPO process as well), but that the copyright holders were upset that they no longer had near unilateral control over the process. It wasn't that they felt WIPO couldn't address the issues, but that it would be much harder to get them addressed in the way industry folks wanted.

As part of the discussion, he also pointed to the recent fight over helping the blind access more content through exceptions in copyright law -- an WIPO process that has been stymied by industry interests who don't like to see any new exceptions applied to copyright. To WIPO, that gridlock on such an obviously reasonable solution is worrying:

The frustration it has caused is a consequence of practical issues not being addressed, he said, citing recent difficult discussions in the Standing Committee on Copyrights and Related Rights on increased access for visually impaired persons. "Can anyone not subscribe to that principle, as a general rule?" he asked, with visually impaired readers only obtaining access to about five percent of all published work in reasonable time.

"Can anyone stand up and say that they should not have more [access], that we should not do something about it?" It is such an obvious question, he said "but we are not getting an agreement" although the last meeting showed genuine involvement of member countries.

If anything, what this demonstrates is not any problems with the WIPO process, but a group of organizations so used to getting their way on copyright issues so totally and completely, that they're not used to facing people questioning the actual impact of the regulations and international agreements they push. When that happened, they decided to take their ball and go home to play with only their friends. That's what ACTA is really about.

Filed Under: acta, negotiations, treaties, wipo

USTR Statement On ACTA Makes No Mention Of Releasing Latest Draft

from the one-time-deal? dept

Well, the latest round of ACTA negotiations have concluded and the USTR has released one of its patented content-free statements about what happened. Most notable, of course, is what is absent: there is no indication that negotiators plan on releasing the latest draft. Remember, that it was in the USTR's statement following the last round that it announced plans to release the draft. This was what many folks had feared. Negotiators released the one draft so that they could claim they were being transparent, and then went right back to secrecy. On top of that, the USTR seems to imply that it was "transparent" this time around because it met with some civil societies who have concerns about ACTA. Of course, it leaves out how negotiators dodged most of the questions. That's not transparency. It's just sad.

Filed Under: acta, transparency, ustr