Treaty Shopping: How Companies Tilt The Legal Playing Field For Investor-State Arbitration

from the hard-to-keep-up dept

Alongside globe-spanning treaties like ACTA and TPP, there are more subtle efforts to limit the power of national governments, through the use of free trade agreements (FTAs) and bilateral investment treaties (BITs). There are now so many of these that it's hard to keep up, although the dedicated site bilaterals.org is a great help here. The confusing multiplicity only adds to their attractiveness for those negotiating them behind close doors, keen as they are to avoid transparency as much as possible.

One key issue for both FTAs and BITs concerns investor-state arbitration procedures that allow companies, typically powerful global corporations, to take entire nations to court over actions that allegedly cause the company harm -- for example, by introducing stricter environmental legislation that requires additional expenditure at manufacturing plants. The trailblazer in taking advantage of these provisions is the tobacco giant Phillip Morris. Here's what it did in Uruguay, back in 2010:

The tobacco giant is suing Uruguay, alleging the country is violating Switzerland’s trade agreement by requiring that anti-smoking warnings cover 80 percent of cigarette packages. If World Bank arbitrators agree, Uruguay could be forced to pay the company millions of dollars.

But Uruguay -- whose Gross Domestic Product is $44 billion -- refuses to back down from Philip Morris, whose market capitalization equals $108 billion. And now the country is getting backing all across the world in its fight against tobacco.

It's also suing Australia for similar reasons:

On 1 December 2011 the Tobacco Plain Packaging Act 2011 received Royal Assent and became law in Australia.

The Act forms part of a comprehensive Australian Government strategy to reduce the rate of smoking in Australia. Smoking is one of the leading causes of preventable death and disease in Australia.

Philip Morris Asia is challenging the plain packaging legislation under the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments. On 21 December 2011, the Australian Government provided its response to Philip Morris Asia's Notice of Arbitration.

A fascinating article on the infojustice.org site from a few weeks ago explains the strategy of the tobacco giant here:

So why didn't this American company go through the [the main US-Australia FTA]? Because that treaty (1) does not guarantee investor-state dispute, and (2) provides for exemptions to expropriation obligations for limitations on intellectual property rights. Phillip-Morris faced a greater likelihood of failure under the US treaty.

The Hong Kong BIT is also a particularly good choice for Phillip-Morris because, unlike other treaties, it does not include prohibition on claims brought by investors owned by citizens or entities of countries not party to applicable treaty. For example, the BIT with the Czech Republic states:

Article 2(2): Where a company of a Contracting Party is owned or controlled by a citizen or a company of any third country, the Contracting Parties may decide jointly in consultation not to extend the rights and benefits of this Agreement to such company.

Had the Hong Kong BIT contained this language, Australia could have stopped Phillip Morris International from going through their Asian subsidiary in bringing this claim.

Phillip Morris is engaging in "treaty shopping" -- choosing to invoke those FTAs or BITs that contain terms most favorable to its legal action, whether or not they are the most logical or relevant to the dispute in question. That's possible because of the multiplication of these treaties, often with slightly different wording that allows the tobacco company to cherry-pick in this way. As well as deploying it against Australia, Phillip Morris is using the same approach in its fight against Uruguay by invoking the bilateral investment treaty between that country and Switzerland, not the US.

This underlines why it is crucially important for nations to get the wording of investor-state arbitration procedures right when negotiating FTAs, BITs and multilateral treaties like TPP. If they don't, they may well find that global corporations will exploit favorable clauses through the kind of treaty shopping practised by Phillip Morris to put countries at a disadvantage when arguing before international tribunals.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: acta, jurisdiction shopping, tpp, trade agreements
Companies: phillip morris

EU Officially Pronounces ACTA Dead As Commission Withdraws Court Of Justice Assessment

from the pining-for-the-fjords dept

In case you weren't sure yet, ACTA is now pretty officially dead in the EU. While it was mostly dead back in July, when the EU Parliament vociferously rejected ACTA, the EU Commission, who had helped negotiate the treaty, still held out hope that it would be vindicated by the EU Court of Justice. As you may recall, to try to appease those arguing against ACTA, the EU commissioner with responsibility for the treaty, Karel De Gucht, had submitted the agreement to the EU Court of Justice for a determination on whether or not it really went against EU laws, and he had insisted that even with the Parliament's rejection that he would push forward with that case.

Except... months later, the EU Commission has quietly dropped its request for the EU Court of Justice to weigh in, more or less putting that final nail in the coffin for ACTA in the EU. It's about a year late, but it appears that the EU Commission has finally realized that ACTA was a mistake for Europe.

Filed Under: acta, dead, eu, eu commission

Doubling Down On Secrecy: ITU Believes Secret Media Strategy Key To Avoiding SOPA/ACTA Fate

from the good-luck-with-that dept

As the WCIT (World Conference on International Telecommunications) gets under way in Dubai, the ITU is making its play to regulate the internet, potentially to aid authoritarian governments in censoring or limiting the internet, or to divert money from innovative internet companies to stagnant state telcos out of a claim of "fairness." There's obviously been a lot of talk about it, and the ITU keeps claiming that it's just a neutral body to facilitate discussions, even as increasing evidence suggests it's urging many of the crazier proposals forward itself.

And now it's come out that ITU officials recently held a "secret" meeting to figure out how they were going to avoid getting SOPA'd, having the world rise up in protest as it tries to implement its internet regulatory regime. Following some bizarre and paranoid fantasy about how the anti-ITU, anti-WCIT efforts are really just because an unnamed "lobbying group" didn't like one proposal (the one mentioned above about diverting money from internet companies to telcos), the meeting got down to business: how could they use social media to prevent SOPA- or ACTA-like uprisings from the public:

In response to the anti-WCIT “campaign,” according to the September retreat’s preparatory materials, the ITU reluctantly launched a “counter-campaign,” which the agency believes “has been fairly successful outside the US and somewhat successful even in the US,” where “some of the statements made to denigrate ITU and WCIT are so extreme that they were easy to challenge and rebut.”

Going forward, the ITU focused at its meeting on the possibility of an “intensive anti-ratification campaign in OECD countries, based on the so-called lack of openness of the WCIT process, resulting in a significant number of countries refusing to ratify the new ITRs.” The ITU calls this possibility “the so-called ACTA scenario,” referring to sometimes violent protests against the secret ACTA treaty that took place this year.

To develop the next phase of its “counter-campaign,” the ITU hosted speakers from leading PR and advertising agencies to advise them on the use of social media. For example, Matthias Lufkens, Head of Digital Strategy for global public relations firm Burson-Marsteller, gave a presentation on how his agency helped the World Economic Forum leverage tools such as Facebook, Twitter, and Flickr to fend off “occupy”-style protests that occurred both physically in Davos and on the Internet.

“There is a risk that [the ACTA scenario] will happen, but our communication campaign can mitigate this,” the internal document says.

Of course, the campaign doesn't really appear to be going that well -- especially since so much of it revolves around "deflect[ing] media questions from secrecy, taxes and censorship" to the blandly empty (and absolutely silly) statement that "the revised ITRs have the exciting potential to pave the way for a broadband revolution in the 21st century." I'm sure that sounds catchy on a tweet. The problem, of course, is that folks on the internet don't tend to believe that kind of bureaucrat-speak when they know it's not true. As Downes notes:

Here’s the unvarnished truth, which no PR agency can help the agency talk, tweet, or prevaricate their way around: The commercial Internet emerged and matured entirely since the treaty was last reviewed. It developed in spite of the ITRs, not because of them.

There is a familiar pattern here of ambitious regulators who have no expertise and little experience with the Internet proclaiming themselves its benevolent dictators, only to find the peasants revolting before the coup has even started.

The ITU is no different than the sponsors of ACTA, SOPA, PIPA, and other attempts at regulating the Internet, its content, or its users by governments large and small. Like the media lobbyists who continue to see the successful fight to kill SOPA and PIPA as a proxy war waged solely by Google and other Internet companies, the ITU simply can’t accept the reality that Internet users have become their own best advocates.

Once again, these bureaucrats really have no clue what they're doing.

Filed Under: acta, itu, media, secrecy, sopa, strategy, wcit

Why Was It Poland That Led The European Revolt Against ACTA?

from the understanding-history dept

In retrospect, it is now clear that the pivotal moment in the campaign against ACTA was last January, when thousands of people took to the streets in Poland despite the sub-zero temperatures there. A few weeks later, similar protests took place across the continent, especially in Eastern Europe, which then influenced politicians at all levels, culminating in the rejection of ACTA by the European Parliament on July 4.

Although the SOPA Blackout day was one inspiration for the European street protests, a key question is: why did they happen first in Poland? Krzysztof Kietzman points us to an interesting piece of research, newly available in English as "The Circulations of Culture. On Social Distribution of Content," that goes some way to offering an answer. Here's the summary:

It describes how books, music, and movies circulate among Poles who sometimes buy them, but more often than not acquire them via the Internet and borrow or copy them from friends.

Interestingly, according to the publication's introduction, the document itself played a role in the ACTA debate when it first appeared (in Polish) in January 2012:

The publication took place at the height of the debate on ACTA and became an important element in public debates on copyright and regulation of online circulations of content.

One reason why it may have provoked discussion is because of the terminology it uses:

this is not a report about "pirates" that conduct illegal activities, but rather about people who engage in informal content sharing practices.

As the report's authors explain:

abandoning the simple legal-illegal binary has yet another reason. The goal of this report is to foster real dialogue on the issue of acquiring cultural content in Poland. The overuse of labels such as "piracy" or "theft" will not improve the chances of establishing such dialogue. An opposition between "formal" and "informal" is in our opinion a much better way for framing this debate.

Here are some of the key findings:

62% of Poles do not participate in either the formal or the informal circulations of cultural content. The primary form of cultural activity for most Poles is probably watching television and listening to the radio.

Things are even worse when it comes to buying stuff:

13% of Poles purchase content, as opposed to 33% that obtain it through informal, digital circulations. Only 13% of Poles have purchased a book, a movie, or a musical recording in the year before the survey. On the other hand, one third of Poles are engaged in the informal sphere understood here as sharing books, music, and movies in digital formats via the Internet.

This indicates how important the informal circulation is in terms of sustaining culture in Poland. A key discovery is that informal and formal patterns of acquisition are not mutually exclusive:

The survey did not corroborate the thesis about informal circulations supplanting the formal ones. The people who most actively engage in the informal content circulations (i.e. Internet users who download files) constitute the largest segment of the purchasers. They comprise 32% of all people purchasing books, 31% of all people purchasing movies, and over half of all people who buy music. They also make up the largest segment of people who lend each other content. People from that group probably treat both informal and formal circulations as complementary.

Of course, this is precisely what a number of other studies have found, so it's no surprise to see it confirmed here.

The following statistics go some way to explaining why so many Poles took to the streets in sub-zero temperatures to protests against ACTA:

92% of active [Internet] users claim to have engaged in informal circulations if their definition is expanded to include all avenues of content access (such as streaming, sharing files with friends, etc.). If we include the informal circulation of content stored on physical media (e.g. sharing and copying books or CDs and DVDs) in the aforementioned definition, then practically all of the respondents (95%) claim to have engaged in such content circulations. The survey indicates, that among people who actively use the Internet, the informal, non-market economy of cultural content is the norm.

The cultural importance of this shared content emerges from another figure:

The most commonplace attitude of active Internet users (50% of respondents) towards the informal circulations is moderate and focused on the broadening of cultural horizons. For them, the crucial factor is the ability to know more and see more, not acquire free content.

That's not to say that money isn't a factor:

75% of active internet users indicated price and a wider selection of content available on the Internet as justifications for their behavior. Two-thirds of them pointed to such factors as availability without delays (typical of formal circulations, where global content arrives in Poland often with a delay) or the selection available.

That is, much of the sharing that takes place in Poland is as a result of copyright companies failing to make their material available in a timely fashion, or pricing it inappropriately for the market there. Again, this is just what other research has found, notably the "Media Piracy in Emerging Economies" that Techdirt reported on before.

That work was led by Joe Karaganis, and in a kind of postword to the present research, he offers perhaps the best analysis of why it was Poland, and the other former Soviet bloc countries, that led the ACTA revolt:

most visible was the demand for transparency and democratic accountability in policymaking -- a demand juxtaposed to the secretive construction and potentially far-ranging obligations of the Agreement. Anti-ACTA sentiment became a channel, in this respect, for dissatisfaction with the wider democratic deficits of European governance.

Less explicit, but no less important in my view, was the use of this secretive process to target a prevalent and largely normalized form of access to culture in Eastern Europe -- the copying, sharing, and downloading of media. These are the compensatory strategies that allowed young Poles, especially, to participate in the wider media culture in which they -- and everyone else -- now grow up. It is no accident, in this context, that the major anti-ACTA protests and first government rejections of the agreement came from Poland, Slovenia, the Czech Republic, Croatia, Romania, and Bulgaria -- the economic periphery of Europe.

That is, young people in these countries were not prepared to give up without a fight wide-ranging access to the kind of culture that had been denied to their parents' generation because of Soviet censorship, and to which they now had access despite their continuing economic disadvantages. And so they took to the streets.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: acta, culture, poland

Will Brazil's 'Anti-ACTA' Marco Civil Be Subverted By Copyright Lobbyists At The Last Moment?

from the snatching-defeat-from-the-jaws-of-victory dept

Just over a year ago Techdirt wrote about Brazil's Marco Civil -- essentially a civil-rights based framework for the Internet. At the time, we dubbed it an "anti-ACTA", since it seemed to protect many of the things that ACTA sought to attack. It all seemed a little too good to be true, and the post concluded by questioning whether it would survive in its present form.

Most of it has, remarkably, but a recent addition to one clause basically guts protection for ISPs and other online intermediaries. The EFF has a good explanation of the situation:

A concerning last-minute change has chipped away at the Bill's safe harbor provisions regarding copyright infringement. Article 15 of Marco Civil originally provided that ISPs are not responsible for infringing content by Third Parties unless they disobey a specific judicial order to take down said content. However, following a visit by the Minister of Culture to the legislator serving as rapporteur of Marco Civil, the rapporteur introduced a new paragraph into Article 15, saying that the article would not apply in cases of "copyright and neighborhood rights".

If passed, this exception would inevitably exert a chilling effect on all Internet activity, as Brazilian ISPs and Web sites removed content perceived to be even vaguely risky. It will come as no surprise to discover who is behind the move:

As expected, this change is an unenlightened consequence of the content industry lobby. Guilherme Varella, lawyer for the Brazilian Institute for Consumer Defense [IDEC], commented on the changes in this recent law article. He stated that this is the result of a clumsy intervention by the Ministry of Culture following constant pressure by the entertainment industry lobby, especially the Brazilian Association of Reprographic Rights (ABDR), the Brazilian Association of Phonographic Producers (ABPD) and the Motion Picture Association of America (MPAA). Varella reports that the entertainment lobby has been camped outside the Ministry and the Congress for the past few weeks, pressuring the vote on the Bill to be postponed until they get what they want.

It's truly extraordinary how once again the copyright industries seem to think they are uniquely entitled to trample on basic rights. And it's particularly sad to see such a worthwhile effort to frame a basic level of protection for online users not just watered down but actively subverted in this way, precisely when it seemed on the point of coming to fruition.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: acta, anti-acta, brazil, copyright, lobbyists, marco civil

Looking Beyond TPP: US & EU Planning More Bad IP Rules In 'US-EU Free Trade Agreement'

from the it-never-stops dept

Just a reminder: when you think you get past an attempt by certain legacy industries to shove through bad laws with questionable international trade agreements, there's always at least one (and probably more) such agreements lurking. So, from ACTA we went straight into TPP... and following TPP, it looks like the US and the EU are already discussing a new US-EU Free Trade Agreement to be worked out soon. A "working group" to get the process started put out a report about what the agreement would include... and, of course, there will be a section on "intellectual property." The USTR has made it clear over the past few years that it thinks free trade agreements are the perfect vehicle for intellectual property maximalism. This makes little sense, since intellectual property is the exact opposite of "free trade." It's whole purpose is to be a trade barrier and a monopoly. But...

Both the EU and the United States are committed to a high level of intellectual property protection, including enforcement, and cooperate extensively through the Transatlantic IPR Working Group. Both sides agree that it would not be feasible in negotiations to seek to reconcile across the board differences in the IPR obligations that each typically includes in its comprehensive trade agreements. Before the launch of any negotiations, both sides would further consult on possible approaches to deal with IPR matters in a mutually satisfactory manner.

So, at the very least, there would be some limits on what such an agreement would get into, given existing "differences," but they still seem to want to include something about "dealing with IPR matters," which can only mean ratcheting things up. It's still early, but you can bet that the legacy industry lobbyists are already well aware of this and involved in the process -- so it needs to be on everyone else's radar as well.

Oh, and both Obama and Romney have indicated they support such an agreement, so it's not like either one is better than the other going into next year.

Filed Under: acta, intellectual propert, international agreements, tpp, us-eu fta

EU & US Negotiators Looking To Hold Blind & Deaf Access Rights Hostage To Get A New ACTA/SOPA

from the sad dept

We already talked about how US officials have been working against a treaty to allow more access to copyrighted works for the disabled, but the latest report from Jamie Love highlights an even more nefarious part of the strategy. To hold the agreement hostage in order to backdoor in certain elements of ACTA/SOPA. This is mainly being led by the EU, but with support from the US. And the main part is putting lots of red tape around any exceptions -- and tying it to more standardized enforcement, which is what ACTA was really all about:

The European Union primarily, but with some backing from the US government, is holding blind people's access hostage in and effort to introduce new global enforcement norms for copyright. If you look at most copyright exceptions in most countries, the system works as follows. If the exception applies, an activity is not considered infringement. If you do something that is not protected by the exception, you are infringing, and all sorts of bad things can happen, depending upon your national laws for infringement, which include both criminal and civil sanctions. That is how the US exceptions work for blind persons, and that's how nearly all national exceptions work for blind persons. But here at WIPO, the EU wants page after page of detailed regulation of anyone who uses an exception. The expanding verbiage of the agreement is almost entirely about introducing ACTA and SOPA like enforcement provisions into this agreement.

We've already seen the EU try to backdoor ACTA provisions in elsewhere, so it should come as little surprise that it would also seek to abuse a treaty to help the disabled to get to the same point as well. Shameful, but not surprising.

Another report on the meetings, from David Hammerstein at the TransAtlantic Consumer Dialogue (TACD) goes into more detail on the EU's moves during the negotiations:

Instead of trying to help one of the world´s most culturally disadvantaged groups the EU´s copyright specialists guided by Commissioner of Internal Market Michel Barnier are busy launching violent preemptive strikes against the possibility of a clear, exception to copyright for the non-profit production and distribution of works formatted for visually impaired persons.

In Geneva this week the EU made one negative proposal after another to block a global agreement that would greatly improve access to culture for the visually impaired. All of them have been rejected by the organizations defending blind and disabled persons rights. Most of them are “copy and paste” proposals from the publishing industry´s wish list. Not one EU proposal this week in Geneva was to facilitate the right to read of disabled persons as guaranteed by international law. Not one member of the EU´s delegation was a human rights or disability expert; all were hard-line copyright apologists.

Basically, they seem to see this as a war, where any exception is seen as "giving in" on copyright. This is insane. This is not about rational minds looking for the proper calibration of the law, or understanding the real impacts of the law. This appears to be about pure copyright religion, where "more" must be better, and any exception, no matter how reasonable, is seen as a sin. Shameful.

Filed Under: access, acta, blind, deaf, sopa

But Of Course: Ridiculous ACTA Provisions Magically Appear In CETA

from the try,-try-again dept

There were plenty of rumors (and leaks) earlier this year about how, even after European protests effectively killed ACTA in the EU, it was clear that some of the worst, most outrageous parts of ACTA had been written into CETA, a similar agreement between Canada and Europe. EU officials claimed they were removing the most controversial provisions -- but now it's been confirmed that the ridiculously misguided criminal sanctions... had magically found their way into CETA. Given the public's response to ACTA, EU Commission officials either think the public is stupid... or just not paying attention.

The current attitude of the EU negotiators on CETA is an alarming repetition of the blatant denial of democracy of the ACTA negotiations. Despite calls from citizens and representatives, CETA remains confidential, both in the EU and in Canada. In this context of non-transparency, Philipp Dupuis, the European Commission negotiator, confirmed at a workshop held on October 10th 2012 that ACTA-like criminal sanctions were still in the CETA draft.

As Jeremie Zimmermann points out in the link above, this whole process of sneaking through protectionist IP policies in supposed "free trade" agreements needs to stop:

“The only hard evidence on which we can base our analysis suggests the worst: once again, the European Commission and the EU Member States governments are trying to impose repressive measures against cultural practices online. Broad criminal sanctions do not belong in a trade agreement. If they appear in the final CETA text, the agreement will lose all legitimacy and will have to be frontally opposed, like ACTA. This trend of sneaking repressive measures through negotiated trade agreements must stop.”

It needs to stop, but people don't realize how entrenched that process is, which is a big part of the problem.

Filed Under: acta, canada, ceta, criminal sanctions, europe

Will ACTA Ever Be A Real Treaty?

from the might-be-tough dept

With the EU Parliament rejecting ACTA over the summer, and the Japanese legislature doing a drive-by ratification, there are some legitimate questions as to whether or not ACTA will ever become a real, valid international treaty. Without the EU's support, it's a hell of a lot less likely, certainly. I'd been joking that it was beginning to look like it's going to become an agreement between the US... and Morocco, but the actual process to make ACTA official requires six participants to have "ratified" it. While a bunch of countries have signed, that's still a step short of ratification. And, to date, only Japan has done so (though there are arguments over whether or not the US needs Congressional approval for ratification). Monika Ermert, over at IP-Watch, details the current situation. Here's a snippet:

With an apparent stalemate between the US administration and legislators about ratification procedures and the European Union out after the Parliament voted against the agreement, it looks as if there is still an uphill battle to get to reach that number.

Besides the EU and Japan, seven governments have signed ACTA (Australia, Canada, Morocco, New Zealand, Singapore, South Korea and the United States). Switzerland has not signed nor ratified.

“Not much is happening on the Canadian front,” wrote Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa and long-time ACTA observer. “Canada signed ACTA, but has not ratified. Ratification would likely require some legislative amendments,” Geist said, and until those changes are introduced the country would not be positioned to ratify. There may be, according to Geist, linkage between ACTA and CETA (the Canada-EU Trade Agreement) under negotiation.

Britton Broun, media advisor of the Economic Group in the Ministry of Business, Innovation and Employment of New Zealand, responded to Intellectual Property Watch by saying: “While New Zealand has signed ACTA, the government has not yet taken a decision on its ratification.”

As we've discussed, Australia's Parliament has already recommended rejecting ACTA, and it appears that ratification has stalled out there as well. Ermert suggests that really the only way that ACTA might reach the necessary levels of ratification will be if other countries follow Japan's method of approval -- by which they effectively sneak it through.

Along those lines, her report confirms what we'd heard about how the ruling party in Japan effectively got ratification without actually bothering to allow the opposition to take part:

But on 31 August, a committee of the House of Representatives, and on 6 September, the full House of Representatives pushed ACTA through, each time counting only the votes of the ruling party.

“To ratify an international treaty without the attendance of all opposition parties means a collapse of democracy in Japan,” warned Suzawa.

While ACTA hasn't received that much attention in Japan, allowing the government to get away with such shenanigans, it seems likely that any attempt to do something similar elsewhere would be met with more widespread resistance. In other words, it seems unlikely that enough countries will actually get around to ratifying ACTA -- though we should never underestimate the tricks that lobbyists and diplomats will pull to try to shove this ugly pig over the finish line.

Filed Under: acta, copyright, japan, ratified, treaty, us

The New Kremlinology: Decoding The Signals Of Future EU Copyright Enforcement Moves

from the rearranging-the-chairs dept

The negotiations behind closed doors of major treaties like ACTA and TPP, and the refusal of participants to release official drafts or to engage in any kind of substantive dialog, has meant that activists and observers have been obliged to seize upon even the smallest signs and hints emerging from those talks in an attempt to guess what is going on. In a way, we are witnessing the birth of a new form of Kremlinology, which Wikipedia explains as follows:

During the Cold War, lack of reliable information about the country forced Western analysts to "read between the lines" and to use the tiniest tidbits, such as the removal of portraits, the rearranging of chairs, positions at the reviewing stand for parades in Red Square, the choice of capital or small initial letters in phrases such as "First Secretary", the arrangement of articles on the pages of the party newspaper "Pravda" and other indirect signs to try to understand what was happening in internal Soviet politics.

Via Guillaume Champeau, we learn that PCInpact (original in French) has spotted a treasure trove of such subtle hints about what's happening within the EU on the copyright enforcement front. It's a document entitled "Report on the online distribution of audiovisual works in the European Union", drafted by the Committee on Culture and Education, and submitted to the European Commission.

It's couched in an apparently interminable sequence of deadly dull clauses beginning "having regard to..." and "whereas...", before launching into a long list of mostly reasonable ideas for making more cross-border digital content available in the EU. But hidden away amongst these are some breathtaking suggestions.

Here, for instance, is Section 39:

Calls on the Commission to afford internet users legal certainty when they are using streamed services and to consider, in particular, ways to prevent the use of payment systems and the funding of such services through advertising on pay platforms offering unauthorised downloading and streaming services;

That may sound familiar, since it's identical to one of the core ideas of SOPA: cutting off all funding to sites accused of permitting unauthorized downloads.

Here's Section 42:

Recognises that, where legal alternatives do exist, online copyright infringement remains an issue and therefore the legal online availability of copyrighted cultural material needs to be supplemented with smarter online enforcement of copyright while fully respecting fundamental rights, notably freedom of information and of speech, protection of personal data and the right to privacy, along with the 'mere conduit' principle;

This, by contrast, is straight out of ACTA, where Section 27 says:

Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.

Note the same empty promise to respect various rights that is completely undermined by the other part requiring copyright enforcement that ignores them. The only real change is that "effective" has been upgraded to "smarter".

This trick of mixing contradictory demands is repeated in Section 59 of the EU report:

Calls on the Commission to consider ways to encourage network operators to standardise their technical tools and reverse the current trend of removing responsibility from these operators regarding consumer protection, implementation of intellectual property rights and ensuring Internet privacy;

So, on the one hand, network operators are supposed to protect consumers and maintain their privacy, while on the other, they will be forced to become responsible for enforcing intellectual monopolies -- losing that "mere conduit" status that was invoked in Section 42 above -- and turn in accused customers to the authorities.

All-in-all, this is an extraordinary document, in part because of its repeated call for contradictory actions, but mostly for the way it asks the European Commission to bring back some of the worst ideas in SOPA and ACTA. New Kremlinologists will obviously need to keep a close eye on missing portraits or the re-arrangement chairs in order to glean further information about the secretive plans that are being discussed deep within the bowels of the EU machine.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: acta, copyright, copyright enforcement, eu, sopa