EU Consultation On Corporate Sovereignty In TAFTA/TTIP Shows 145,000 Against It; European Commission Carries On Anyway

from the not-listening dept

As Techdirt has been reporting for a while, corporate sovereignty chapters have emerged as one of the most worrying aspects of trade agreements. Concerns about the inclusion of the investor-state dispute settlement (ISDS) mechanism in TAFTA/TTIP became so acute in the EU that the European Commission was forced to hold a consultation on the subject last year in an attempt to assuage growing fears. We pointed out at the time that this was a sham, since all it offered was the option to comment on a few minor revisions to the ISDS mechanism: it was not designed to allow the public to express their views on the idea itself.

People went ahead and used the opportunity to convey their rejection of the imposition of corporate sovereignty provisions anyway. The publication of the European Commission's analysis of the ISDS consultation (pdf) confirms just how complete that refusal is. Here's a summary from the accompanying press release:

The vast majority of replies, around 145,000 (or 97%), were submitted through various on-line platforms of interest groups, containing pre-defined, negative answers. In addition, the Commission received individual replies from more than 3,000 individuals and some 450 organisations representing a wide spectrum of EU civil society, including NGOs, business organisations, trade unions, consumer groups, law firms and academics. These replies generally go into more detail on the proposed approach.

As well as the unanimity of the rejection, what is striking is the fact that 145,000 citizens replied to a consultation on an obscure aspect of trade agreements that most people had never heard of a year ago. That alone bespeaks an unprecedented engagement by the public -- something rare enough at a time when people are generally disenchanted with politicians and their grand projects. And yet instead of celebrating this incredible interest from the public, here's how the European Commission's report chose to frame things:

It was possible to ascertain that a very large number of replies (around 145.000) were submitted collectively through various non-governmental organisations (NGOs). These organisations provided pre-defined answers which respondents adhered to. These NGOs made available dedicated on-line platforms or software, often with pre-prepared answers, permitting the loading of replies directly into the database of the public consultation, thus making it possible to submit very significant numbers of replies in a short amount of time.

In other words, the Commission clearly implies, those 145,000 replies were more or less cheating, because they used "pre-defined answers" to make things easier, and thus shouldn't really be treated as seriously as individual and unique contributions that required many days work by highly-paid lobbyists. That attitude betrays once more the inherent bias in these consultations, which are aimed at companies and their PR machines, not at the general public, whose views are rarely sought, and even more rarely listened to.

And that's the case with this corporate sovereignty consultation. Declaring that it was not meant to be a "referendum" on ISDS, the European Commission is responding by organizing yet more consultations:

In the first quarter of 2015, the Commission will organise a number of consultation meetings with EU governments, the European Parliament, and different stakeholders, including NGOs, business, trade unions, consumer and environment organisations, to discuss investment protection and ISDS in TTIP on the basis of this report.

This is the old technique of repeatedly asking a question until you get the answer you want. It confirms that the consultation was never seriously intended to solicit people's views, but was mere window-dressing, and undertaken in the hope that the general public would be too bored or confused by the technical questions posed to take part.

But this reckoned without two factors. The first is the Internet, which has allowed NGOs and other campaigners to provide tools that make it much easier for the public to understand and participate in complex discussions. That's why the European Commission singles out this aspect for scorn: it represents a very serious threat to the cosy old way of doing things, as the Net-driven rejection of the Anti-Counterfeiting Trade Agreement (ACTA) in 2012 showed most dramatically.

The other factor that the Commission overlooked was that people now understand that TAFTA/TTIP is not a typical trade agreement about tweaking tariffs. Instead, it represents an ambitious attempt to re-mold society on both sides of the Atlantic by changing regulatory norms and processes. Unlike tariffs, regulations are largely cultural, and so "harmonizing" them is about imposing cultural change from without. ISDS is part of that: it is a way for companies to challenge and shape national law-making through the use of supranational courts.

The massive rejection of corporate sovereignty by huge numbers of Europeans in the ISDS consultation is a warning to the European Commission that such anti-democratic actions are unacceptable, and that if it wants to avoid another ACTA fiasco, it had better drop ISDS from TAFTA/TTIP sooner rather than later.

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Filed Under: corporate sovereignty, eu, eu commission, isds, tafta, ttip

European Commission Announces Major Transparency Initiative For TAFTA/TTIP

from the now-it's-your-turn,-USTR dept

One of the biggest -- and most justified -- criticisms of the TAFTA/TTIP negotiations is that they are being conducted in almost complete secrecy. Attempts to deflect this criticism with token moves such as "stakeholder meetings" have failed, not least because so-called "civil society" sessions turned out to be packed with the usual business lobbyists. Similarly, the European Commission's release of negotiating positions meant that we had only general statements of intent, but without any meaningful detail -- and, as ever, the devil really does lie in those details.

The recent appointment of a new European Commissioner for Trade, Cecilia Malmström, offered the hope of a new era, especially when she quickly outlined two proposals for boosting transparency, showing a welcome appreciation of the importance of this topic:

First, to extend access to TTIP texts to all Members of the European Parliament, beyond the currently limited group of Members of the European Parliament's International Trade Committee.

Second, to publish texts setting out the EU's specific negotiating proposals on TTIP.

The first happened immediately, and Malmström has just started to deliver on the second:

The European Commission today published a raft of texts setting out EU proposals for legal text in the Transatlantic Trade and Investment Partnership (TTIP) it is negotiating with the US. This is the first time the Commission has made public such proposals in bilateral trade talks and reflects its commitment to greater transparency in the negotiations.

Here are some more details of what the newly-published texts include:

The so-called 'textual proposals' published today set out the EU's specific proposals for legal text that has been tabled in the proposed TTIP. They set out actual language and binding commitments which the EU would like to see in the parts of the agreement covering regulatory and rules issues. The eight EU textual proposals cover competition, food safety and animal and plant health, customs issues, technical barriers to trade, small and medium-sized enterprises (SMEs), and government-to-government dispute settlement (GGDS, not to be confused with ISDS). Today, the Commission has also published TTIP position papers explaining the EU's approach on engineering, vehicles, and sustainable development, bringing the total number of position papers it has made public up to 15.

To make the online documents more accessible to the non-expert, the Commission is also publishing a 'Reader's Guide', explaining what each text means. It is also issuing a glossary of terms and acronyms, and a series of factsheets setting out in plain language what is at stake in each chapter of TTIP and what the EU's aims are in each area.

There do seem to be some fairly important documents among the new releases. For example, there is the proposed text for the highly-contentious Sanitary and Phytosanitary measures (SPS) chapter (pdf), which covers various aspects of agricultural products. However, others are still missing: for the chapter dealing with copyright and patents, we only have a two-page factsheet giving very a broad outline of the proposed measures (pdf) -- and including the customary assurances that TTIP is not ACTA 2.0. There are other important sections missing, as the S&D group in the European Parliament has been quick to point out in a press release:

We also want the services schedule published, as the Commission has already done for the Trade in Services Agreement (TiSA), which would ensure the full protection of the public services.

Public services is an area of great concern to many in the EU, so its absence here will be seen as a disappointment. Other suggestions for how the negotiations could be opened up have come from the EU Ombudsman, who has just published her report on TAFTA/TTIP transparency:

The European Ombudsman, Emily O'Reilly, while welcoming the real progress by the European Commission, has made a series of recommendations on how to further increase the transparency of the on-going Transatlantic Trade and Investment Partnership (TTIP) negotiations with the US. The recommendations relate to public access to consolidated negotiating texts, greater proactive disclosure of TTIP documents and increased transparency as regards meetings that Commission officials hold on TTIP with business organisations, lobby groups or NGOs.

Clearly, then, there is now considerable momentum in Europe behind the move to open up TAFTA/TTIP. This raises the obvious question: so what about the US? As we noted last year, the USTR has shown no signs of softening its hard-line, anti-transparency position for either TTIP or TPP. But now that the European Commission has accepted the argument that openness is likely to help the acceptance of TTIP, rather than harm it, and aims to release key documents routinely, how long can the US negotiators plausibly maintain their outdated position?

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Filed Under: cecilia malmstrom, eu, eu commission, negotiating documents, tafta, transparency, ttip

Forget EU's Toothless Vote To 'Break Up' Google; Be Worried About Nonsensical 'Unbiased Search' Proposal

from the that's-where-the-real-threat-is dept

As was widely expected after leaking out a few days earlier, last week the EU Parliament "voted" on its proposal to support the breakup of Google. And yet, that might not really be as important as a second part of the EU's vote, concerning a bizarre and nonsensical requirement for "unbiased" search results. As discussed earlier, the headlined proposal for breaking up Google is both completely toothless and kind of stupid. On the toothless part, not only can the EU Parliament not actually do anything about this, if the EU Commission wanted to break up Google, it would need to go through a long and involved process, that would likely fail. As Vox notes:

For Google to actually get broken up, the European Commission would first need to take Google to court alleging violation of European competition laws. The EC would then have to win the case and convince the courts that a breakup was the appropriate remedy.

"I can't believe that would happen," [antitrust expert Mark] Patterson told me on Monday. "I don't think there have been cases of anyone being broken up in years."

Patterson says that "there's never been a smoking gun" showing that Google has abused its dominance in the search or advertising markets to harm competitors

But still, here's what the EU Parliament approved [pdf] by a 384 to 174 vote:

Notes that the online search market is of particular importance in ensuring competitive conditions within the digital single market, given the potential development of search engines into gatekeepers and the possibility they have of commercialising secondary exploitation of information obtained; calls, therefore, on the Commission to enforce EU competition rules decisively, based on input from all relevant stakeholders and taking into account the entire structure of the digital single market in order to ensure remedies that truly benefit consumers, internet users and online businesses; calls, furthermore, on the Commission to consider proposals aimed at unbundling search engines from other commercial services as one potential long-term means of achieving the aforementioned aims;

As for why this is stupid, the Economist has a rather good explanation:

Google is clearly dominant, then; but whether it abuses that dominance is another matter. It stands accused of favouring its own services in search results, making it hard for advertisers to manage campaigns across several online platforms, and presenting answers on some search pages directly rather than referring users to other websites. But its behaviour is not in the same class as Microsoft’s systematic campaign against the Netscape browser in the late 1990s: there are no e-mails talking about “cutting off” competitors’ “air supply”. What’s more, some of the features that hurt Google’s competitors benefit its consumers. Giving people flight details, dictionary definitions or a map right away saves them time. And while advertisers often pay hefty rates for clicks, users get Google’s service for nothing—rather as plumbers and florists fork out to be listed in Yellow Pages which are given to readers gratis, and nightclubs charge men steep entry prices but let women in free.

Furthermore, the Economist points out that, not only does this move appear to be anti-consumer, but it's also just blatantly protectionist for companies unwilling to innovate:

Instead of attacking successful American companies, Europe’s leaders should ask themselves why their continent has not produced a Google or a Facebook. Opening up the EU’s digital services market would do more to create one than protecting local incumbents.

But within the proposal, a few lines down, there was something that might be even more concerning, and more ridiculous, even if it generated fewer (actually, almost no) headlines. And it's that, beyond "breaking up" search engines, the resolution also included this bit of nonsense, saying that search engines need to be "unbiased":

Stresses that, when operating search engines for users, the search process and results should be unbiased in order to keep internet searches non-discriminatory, to ensure more competition and choice for users and consumers and to maintain the diversity of sources of information; notes, therefore, that indexation, evaluation, presentation and ranking by search engines must be unbiased and transparent; calls on the Commission to prevent any abuse in the marketing of interlinked services by search engine operators;

But what does that even mean? Search is inherently biased. That's the point of search. You want the best results for what you're searching for, and the job of the search engine is to rank results by what it thinks is the best. An "unbiased" search engine isn't a search engine at all. It just returns stuff randomly.

What this really is, is a way for the EU to try to insert itself into being able to edit search results. They're trying to insert themselves into the algorithm to determine which search results it thinks should be up top, rather than whatever the algorithms find. This is very worrisome -- in part because it demonstrates how little the EU politicians who voted for this understand. Years ago, James Grimmelmann (no friend of Google -- as he's actively fought against Google on a number of issues), explained why this concept (sometimes called "search neutrality") makes no sense at all, and actually sets up a conflicting set of requirements where the "ends and means don't match." He concludes that the very idea of unbiased search is "incoherent." In fact, he notes that an attempt towards "unbiased search" almost certainly leads to not just worse results for users, but a more likely situation in which users get pushed to the kinds of sites policy makers think they're going to demote.

Requiring search engines to behave “neutrally” will not produce the desired goal of neutral search results. The web is a place where site owners compete fiercely, sometimes viciously, for viewers and users turn to intermediaries to defend them from the sometimes-abusive tactics of information providers. Taking the search engine out of the equation leaves users vulnerable to precisely the sorts of manipulation search neutrality aims to protect them from. Whether it ranks sites by popularity, by personalization, or even by the idiosyncratic whims of its operator, a search engine provides an alternative to the Hobbesian world of the unmediated Internet, in which the richest voices are the loudest, and the greatest authority on any subject is the spammer with the fastest server. Search neutrality is cynical about the Internet—but perhaps not cynical enough.

Meanwhile, the sole Pirate Party member of the European Parliament, Julia Reda, has a bit more detail about how this bogus claim of "unbiased search" is really just an attempt to prop up publishers who failed to innovate via so-called "ancillary rights," like the attempt to force Google to pay newspaper publishers for sending them traffic. As Reda notes:

Here, it is demanded that search algorithms and results should be impartial to keep internet searches “nondiscrimatory” and to “secure competition and freedom of choice for users and consumers”. Consequently, indexing, weighting, display and ordering of search engines should be impartial and transparent.

This wording is explosive. I am led to suspect that its aim is to prepare a European ancillary copyright for press publishers. The attempt to cross-finance big publishers through Google most recently spectacularly backfired in Germany. Is this resolution an attempt to create the puzzle piece that had been missing in Germany?

In October, Günther Oettinger, the EU Commissioner for the Digital Economy and Society, provoked a debate on an EU-wide ancillary copyright law for press publishers before even taking office. Not a month later, the next move is made in that direction – this time in the parliament.

As you may recall, when German publishers demanded payments for the traffic, Google removed their snippets, and the publishers claimed it was "blackmail." As Reda notes, the whole "neutrality" or "unbiased" language in the resolution suggests a plan in which Google would be forced to (1) continue providing the snippets and traffic and then, later, (2) pay the publishers for sending them the traffic. In short, the idea is to force Google to "violate" the (made up) rights of publishers in order to give them a way to force Google to give them money.

Reda, along with Michel Reimon, put forth amendments that would block this possible interpretation of the resolution... and had those amendments rejected.

It's clear that Europe, for whatever reason, has decided to go to war against American internet companies, with Google being the main target. As we noted last week, it's not clear what the reasons are other than that Google is big and American. It's perfectly reasonable to be concerned about potential abuse, and to vigilantly watch to make sure no such abuse occurs, but that's not what's happening here. It appears that these moves are just designed to punish not only Google, but the very users of the service in Europe, pressuring the company to deliver a lesser product... just to benefit a few companies and industries that have failed to innovate.

It is difficult to see how such an effort could possibly be good for the people of Europe.

Filed Under: antitrust, eu, eu commission, eu parliament, julia reda, search neutrality, unbiased search
Companies: google

EU Parliament Wants To Break Up Google... Because It's Big & American Or Something

from the gotta-any-better-reason? dept

On Friday, the Financial Times broke the story that the European Parliament is going to call for breaking up Google. Of course, the European Parliament can't actually do that, but it appears designed to put pressure on the EU Commission, which has been talking about antitrust actions against Google for quite some time. While it had looked like there was a settlement earlier this year, those plans more or less appeared to fall apart. Just recently, we wrote about efforts to force Google to change some of its search results in Europe -- and noted how problematic it gets when governments start telling search engines how to program their algorithms.

But, actually breaking up Google would go a hell of a lot further. The idea had been floated earlier this year by a top German official, but who would have thought anyone would take it seriously.

And here's the thing: as far as I can tell, there isn't any real reason for trying to break up Google, other than the fact that it's very big and very not European.

There's no discussion about any actual harm... just the fact that some people don't like the fact that the company is so big (and not European):

Since his nomination to be the EU’s digital commissioner, Germany’s Günther Oettinger has suggested hitting Google with a levy for displaying copyright-protected material; has raised the idea of forcing its search results to be neutral; and voiced concerns about its provision of software for cars.

Google has become a lightning rod for European concerns over Silicon Valley, with consumers, regulators and politicians assailing the company over issues ranging from its commercial dominance to its privacy policy. It has reluctantly accepted the European Court of Justice’s ruling on the right to be forgotten, which requires it to consider requests not to index certain links about people’s past.

If they were alleging real consumer harm, that would be one thing, but no one seems to be discussing that.

The NY Times has more details on the expected resolution, which talks about "unbundling" Google's various other services from the search engine:

The language in the draft resolution calling for the break up of powerful search engines does not attack Google directly. Instead, according to a version seen by The New York Times, the resolution calls on the European Commission “to consider proposals with the aim of unbundling search engines from other commercial services” to introduce more competition into online search in Europe.

The resolution was written by Andreas Schwab, a member of the center-right European People’s Party from Germany, where powerful publishing groups have strongly campaigned for measures to rein in Google’s market power.

If true, then it seems that Microsoft -- one of the leading drivers behind antitrust actions in Europe -- may have shot itself in the foot here, since it, too, is a "search engine" that has plenty of other "commercial services."

While I do think antitrust is an important tool in stopping abusive monopolistic powers that block out any and all competition, it seems only reasonable that you should at least have to show some sort of actual consumer harm. Furthermore, it's difficult to see how this plan would actually do what its backers seem to want to accomplish. Breaking up Google, if it can even be done realistically, doesn't magically lead to more search engines in the market. There are lots of upstart search engines out there trying -- we hear about new ones all the time. And they're not, in any way, "blocked" by Google. So what would this move do other than punish Google for being successful?

Filed Under: antitrust, breakups, competition, consumer harm, eu, eu commission, eu parliament, search engines
Companies: google, microsoft

EU Council Presidency Presents Paper On Tackling Copyright Infringement That's Little More Than ACTA Reheated

from the forward-to-the-past dept

The political machine of the European Union is undergoing a major makeover. Elections recently took place for Members of the European Parliament, bringing in many new faces. Later this year, a new array of Commissioners will take up jobs in the European Commission. The third main player in the EU political system is the Council of the European Union, a more anonymous kind of body, which consists of a varying group of ministers from the 28 member states who meet to discuss key areas. It may be shadowy, but can provide important hints about what is happening behind the scenes in Brussels. For example, the Presidency of the Council, currently held by Italy (EU countries take it in turns), has just presented a "paper aimed at structuring the exchange of views on IPR enforcement" (pdf). It notes that the European Commission carried out a consultation on copyright recently, and comments that:

The current legislative framework is not necessarily fit for purpose in the digital environment.

That's undoubtedly true, as the public's massive response to the consultation confirmed. Sadly, though, the paper's "solutions" to updating copyright are basically straight out of the infamous Anti-Counterfeiting Trade Agreement (ACTA) we thought had been killed off in 2012. Here are the paper's first suggestions for how things could be updated and improved:

Clarify which tools are available to identify IPR infringers: clarify the retention and disclosure of personal data by intermediaries, in order to improve identification in case of commercial scale infringements while guaranteeing the protection of fundamental rights of individuals (thus avoiding abuses); clarify to what extent due diligence obligations such as « know your customer » are or should be imposed on intermediaries.

As that indicates, there is the troubling suggestion that the metadata retained by ISPs and telecoms in the EU -- data that we were assured had to be kept, but only for use in the fight against terrorism -- might be handy for tracking down people who make unauthorized copies of copyrighted material. After all, if it's sitting there, why not use it? "In case of commercial scale infringements" is just a fig leaf. For ACTA, which the European Commission helped draft, the following dangerously broad definition of the term (pdf) was used:

Acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.

"Indirect economic or commercial advantage" includes just about everything. In that quoted section above, there's also a wonderful new euphemism for using intermediary liability to turn ISPs into the copyright police: "know your customers." The second suggestion builds on that idea:

Improve the efficiency of actions to stop IPR infringements through better involvement of intermediaries: clarify the notion of intermediary in the context of Directive 2004/48 (are payment and advertising service providers included ?), clarify the conditions for imposing injunctions on them (to what extent should intermediaries be involved in the infringement ?), clarify what type of injunction can be imposed on intermediaries (which measures ? should priority be given to the « follow the money principle » to deprive commercial scale infringers of the revenue flows that draw them into such activities?); clarify the duration of injunctions and the possibility of obtaining cross-border or even pan-European injunctions.

"Better involvement of intermediaries" - that's a close cousin of a phrase in ACTA:

Promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement

Suggestion three in the new paper is as follows:

Improve the accessibility of judicial systems, in particular for SMEs: introduce fast track procedures for small claims.

Maybe "fast track" means this idea from ACTA:

Each Party shall provide that its judicial authorities have the authority to adopt provisional measures inaudita altera parte where appropriate

Translated into English, that means allowing a court hearing without bothering to give the accused a chance to defend themselves -- that would certainly save time. Finally, we have this:

Clarify the allocation of damages: increase the predictability of the amounts allocated and ensure that damages awarded are sufficient to cover the prejudice suffered

Again, that seems to be a throwback to another section of ACTA:

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.

Although the phrasing may be a little different, it's striking how the same old bad ideas keep on turning up. It will be interesting to see how the new European Commission takes this forward -- although maybe "backward" would be a better description of where it is going.

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Filed Under: acta, copyright, enforcement, eu, eu commission, eu council, intellectual property

European Commission Denies EU Public Right To Express Views On TAFTA/TTIP And CETA

from the something-rotten-in-the-state-of-Europe dept

One of the most glaring problems with TAFTA/TTIP is the lack of input from the public in whose name it is being negotiated. The great interest in providing feedback on the agreement can be seen from the one occasion when it was possible to voice an opinion -- the European Commission's consultation on the inclusion of a corporate sovereignty chapter. And yet, even though an unprecedented 150,000 responses were received -- the vast majority of which were against any kind of investor-state dispute settlement (ISDS) measures -- a top European politician recently announced that there are no plans to take ISDS out of CETA, the almost-finished trade agreement between the EU and Canada that represents a kind of warm-up for TAFTA/TTIP.

Since the European Commission refuses to take into account the public's views directly, people have turned to another mechanism to make their voices heard: a special kind of EU-wide petition called a European Citizens' Initiative (ECI). If sufficient signatures are obtained from around the EU, the European Commission is obliged to respond, but the bar to make that happen is set quite high:

One million signatures must be gathered within one year. Additionally, in seven EU states a specific minimum of supporters must be achieved, e.g. 72,000 signatures in Germany, 55,500 in France, or 54,750 in the United Kingdom. If the initiative succeeds in doing this, then the EU Commission organises a hearing in the EU Parliament, and concerns itself with the matter. The ECI citizen's committee then finally receives a written response from the Commission. If the Commission decides to present a legal act, then this is is passed on to the European Council and to the European Parliament.

That information comes from a new site set up by the Stop TTIP Alliance, a pan-EU coalition that aims to seek support for the following petition:

We invite the European Commission to recommend to the Council to repeal the negotiating mandate for the Transatlantic Trade and Investment Partnership (TTIP) and not to conclude the Comprehensive Economic and Trade Agreement (CETA).

Before signatures can be solicited, an ECI must first be registered with the European Commission. As a precaution, the Stop TTIP Alliance took legal advice to ensure that its petition met the requirements of the ECI. Despite that, the European Commission has just refused the registration request, which means the petition cannot go ahead as planned. Although that came as a complete surprise, the organizers of the ECI certainly aren't giving up -- on the contrary:

"Now the battle really begins," said Michael Efler, contact person of the ECI, which currently represents almost 230 organizations from 21 EU countries. "The rejection of the ECI only confirms the Commission's strategy to exclude citizens and parliaments from the TTIP and CETA negotiations. Instead of paying attention to citizens, it is just lobbyists that are being listened to."

The group offered some comments on the contrived legalistic justification offered by the European Commission for refusing to allow the petition to proceed. For example, the Commission claimed that the negotiating mandates for both TTIP and CETA were not "legal acts", as required for a petition, but "internal preparatory acts". Efler says:

"If the Commission’s legal opinion had any substance, then in plain English this would mean that Europe's population is excluded from participation in the development of any kind of international agreements -- information that is as frightening as it is scandalous."

The European Commission also tried to claim that it couldn't make "negative ratification proposals", but the Stop TTIP group points out:

"this means that citizens can only applaud international negotiations carried out by the Commission, but not criticize them,” said Efler.

Against this background, the Stop TTIP group is considering whether to begin legal action against the European Commission, including taking its case to the EU Court of Justice. After, all, this is not just about a European petition, but about European democracy, as one of the main organizers of the Stop TTIP ECI, John Hillary, writes:

There is something rotten in the state of Europe when an unelected, unaccountable EU body can glibly inform millions of us that we no longer have the right to question its most dangerous and unpopular policies.

...

The ruling is a slap in the face for the 230 civil society organisations from across Europe that have lined up behind the initiative, and the millions of European citizens they represent. The ECI is the only vehicle available to us to challenge the shadowy bureaucrats of the European Commission. Now even this seems to be too much scrutiny for them.

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Filed Under: ceta, eci, eu, eu commission, european citizens initiative, petition, public, public comment, tafta, trade agreements, ttip

European Commission Consultation On Copyright Reveals Chasm Between Views Of Public And Publishers

from the now-they-can't-deny-it,-but-will-they-act-on-it? dept

In January of this year, we urged Techdirt readers to express their views on copyright by participating in the European Commission's consultation on the subject. It seems that many of you did, judging by the final numbers, which have just been published by the Commission (pdf):

The public consultation generated broad interest with more than 9,500 replies to the consultation document and a total of more than 11,000 messages, including questions and comments, sent to the Commission's dedicated email address. A number of initiatives were also launched by organized stakeholders that nurtured the debate around the public consultation and drew attention to it.

Some 5600 response came from the public, 2400 from authors/performers, and a thousand or so from companies. The European Commission has published an analysis of the comments on a question-by-question basis. This makes it slightly hard to get an overall sense of what the various sectors are saying, but fortunately Leonhard Dobusch has tackled that problem in an illuminating post on the Governance Across Borders blog:

I tried to have a look at the bigger picture here: what do we learn about the state of copyright at large? And what overall direction should copyright reform take?

Here's how he addressed those questions:

What I have done is to check for each of the 24 issue sections whether one of the respective stakeholder groups sees a need for copyright reform or is content with the current copyright system (for details check out a public Google spreadsheet with original quotes). The results are not entirely surprising and very clear: we have a strong divide among copyright stakeholders with end users and institutional users (e.g. libraries, archives, universities) strongly in favor of copyright reform and authors, collective management organizations, publishers and producers in favor of the current copyright system.

He then turned that information into two striking graphics:

For those that can't view those images, they show the public massively in favor of reforming just about every aspect of copyright, and publishers massively against doing so. As Dobusch writes:

the two charts above indicate that current EU copyright is very unbalanced. When one side is completely satisfied with the status quo and the other is very unhappy then this is not a balanced situation. Given that a good compromise should leave everybody equally unhappy, the results of the consultation also show the direction for copyright reform efforts of the new EU Commission: re-balancing copyright requires at least some reform as demanded by end users and institutional users, most importantly a more harmonized and flexible system of exceptions and limitations.

This is what Techdirt and many others have been urging for years. What's important here is that with this significant response to the consultation, it is now impossible for the European Commission to ignore the chasm between the views of the public, hugely unhappy about the current imbalance of copyright, and those of the publishers, desperately trying to keep things as unfair and as profitable as they are currently. Whether the Commission does anything about it is quite another matter.

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Filed Under: copyright, copyright reform, eu, eu commission, europe, public, public interest, publishers

EU Copyright Head Looking To Roll Back UsedSoft Decision, Makes Weak Noises About 'Infinite Contracts'

from the industries-still-writing-the-rules dept

The European Union has its own revolving door, one that allows lobbyists to enter government agencies in order to directly regulate the same industries they so recently stumped for. Maria Martin-Prat went from directing "global legal policy" for IFPI (the international RIAA) to being the EU Commission's point person for copyright issues.

In the past, Martin-Prat has gone on record as being against any sort of private copying exception to copyright law, stating that:

"private copying has no reason to exist and should be limited further than it is."

The private copying exception varies from country to country, but in Martin-Prat's mind, the best case scenario is likely "not at all… anywhere." So, why is Martin-Prat, an admitted hardliner on copyright issues, suddenly discussing the unfairness of certain copyright contracts?

Speaking at a Westminster Forum seminar, Maria Martin-Prat, EC Head of the Copyright Unit for the Internal Market Directorate General (DG MARKT), said the Commission should look at whether contracts were fair.

She told us that the infinite assignment of rights that authors must agree to in most EU countries to get their work published was what she had in mind.

In the digital era, freelance authors and photographers in many members states have been asked to assign their rights to an intermediary in “infinite” deals.

Forever contracts are, indeed, the sort of unfair deal that the EU Commission should take a longer look at. Here in the US, the reversion of copyright back to the creators (for pre-1976 recordings) has prompted record labels to argue that everything created was a "work for hire," and thus belongs to the label in perpetuity. (This argument also took the form of a midnight run to Congress to get copyright law amended in the recording industry's favor.) An infinite contract obviously closes that potential loophole for artists to reclaim their work after a reasonable amount of time.

Seems like a good start, but Martin-Prat continues, dispelling any notion that serious copyright reform will occur under her guidance.

The distribution of “the share of the value in the internet” was worth examining said Martin-Prat - particularly “who gets the profits?”

Ah, the old "the Internet owes everyone a living" argument, wherein (probably) Google is blamed for every low number on the copyright industries' balance sheets and asked to kick in to make up for the shortfall. Note that Martin-Prat asks "who gets the profits," rather than asking how to divide the profits, which indicates she already has an answer in mind. Why address problems in any logical fashion when you can just use the weight of the EU Commission to make internet services bend to the will of misguided court decisions and nearly two decades' of useless complaining from the recording industry?

Then Martin-Prat steps even further away from copyright moderation and takes a swing at the few remaining rights purchasers of creative works have, citing specifically the UsedSoft decision, which agreed that sold software was a "license" rather than a sale, but despite this distinction, could still be resold.

“In both cases the Court was pushing the boundaries of the copyright rules to help the function of the internal market,” she said. “UsedSoft was desperately trying to turn software licensed by a user into a good - so they could enjoy free movement of goods,” she observed. “The Court cut a few corners” in its interpretation, she thought. However, “if we don’t do something at some point the CJEU will keep pushing.”

So, it looks as though Martin-Prat will be pushing back on this decision in order to remove something that actually helps sell new software -- the possibility of resale. Whether the copyright industries like it or not, people consider this factor when purchasing new items and if the possibility exists to make something back, it actually encourages a few more sales. There's nothing inherently "unfair" about not being able to profit from every sale, but the industries still think it's just another way they're being screwed -- hence the push to call everything a "license," even if it's a physical good.

Martin-Prat offers to take on an inherently unfair contract (the infinite copyright contract) but only because she has a desire to protect other unfair contracts (you can't resell what your purchase). The first will likely end up riddled with loopholes (for all intents and purposes, most recording contracts may as well be "infinite," considering how hard it is for artists to reclaim their copyrights) and the latter will just help the industries further pare down the few copyright law exceptions that currently exist.

Filed Under: copyright, eu commission, infinite contracts, license, maria martin-prat, ownership, private copying, sale, used goods
Companies: usedsoft

Why The European Commission's Consultation On Corporate Sovereignty Is A Sham (And How To Respond To It Anyway)

from the make-your-voice-heard dept

One measure of the resistance to the inclusion of corporate sovereignty provisions in TAFTA/TTIP is that the European Commission unexpectedly announced that it would be holding a three-month public consultation on this aspect in an attempt to defuse public anger. Here's the consultation's home page:

The European Commission is consulting the public in the EU on a possible approach to investment protection and ISDS in the TTIP. The proposed approach contains a series of innovative elements that the EU proposes using as the basis for the TTIP negotiations. The key issue on which we are consulting is whether the EU's proposed approach for TTIP achieves the right balance between protecting investors and safeguarding the EU's right and ability to regulate in the public interest.

As that shows, at the heart of the exercise is the misguided belief that protecting investors is somehow comparable to protecting the public interest and national sovereignty, and that a "balance" has to be struck between the two. No wonder, then, that the consultation itself is a sham: it does not seek people's views on whether investor-state dispute settlement (ISDS) is needed at all, only what form it should take, down to extremely technical details that will be incomprehensible to anyone not an expert in international trade law.

The structure of the consultation document (pdf) reflects this: 12 highly-specific questions about aspects such as "Scope of the substantive investment protection provisions" and "Appellate mechanism and consistency of rulings", and only one more general one: "What is your overall assessment of the proposed approach on substantive standards of protection and ISDS as a basis for investment negotiations between the EU and US?" On top of that, you must answer all 13 questions in 90 minutes, and it's not possible to save your answers and return to them later (but the digital rights group EDRi has created an online tool that lets you do that.) A cynic might almost think the European Commission is trying to make it hard for the public to participate.

As the closing date of the consultation (6 July 2014) approaches, a number of organizations have put together handy guides to filling it in -- it's open to everyone, not just EU citizens. Here, for example, is the Answering Guide from EDRi (pdf), which helpfully explains what exactly the often opaque questions mean, then suggests a number of points you might like to mention in your reply. A new site with the self-explanatory name of "No 2 ISDS!" also runs through each question in turn, but offers rather more forthright suggestions. Here's a typical sample:

Question 5: Ensuring the right to regulate and investment protection

I fundamentally oppose the fact that investment protection is placed above the sovereign right to regulate because:

Rules emerging from a democratic voting process (democratic and parliamentary decision-making process), which reflect the public interest and the will of millions of people, must always be weighted more heavily than private sector vested interests.

Fundamental social rights and human rights must not be limited by economic freedoms.

Naturally, the open-ended last question provides the people behind the No 2 ISDS! site with more scope for expressing their views on the consultation:

Are there any other issues related to the topics covered by the questionnaire that you would like to address?

First of all I would like to express my deep concerns with this highly complicated and technical questionnaire. If a consultation asks for the contribution of civil society/the public, then an honest attempt should be made whereby non experts should be able enabled to contribute. This is definitely not the case with this consultation, especially because, up until this question, there has been no possibility to state that I do not want any investor-state dispute settlements at all -- in TTIP, or in any other trade agreement. Furthermore, technical obstacles that prevent me from only filling in one part of the form, or to respond through email or fax fundamentally alter the "public" character of this consultation.

A similarly robust reply is offered by the Trade Justice Movement, whose answer to Question 13 begins as follows (Microsoft Word document):

There are serious flaws in this consultation process. First: it fails to give European communities the possibility of responding to the proposed TTIP in its entirety. The EU should provide this opportunity, particularly in light of the controversy regarding issues such as the secrecy surrounding the negotiations and the undermining of basic democratic processes, regulatory harmonisation and the impact on standards, the impact on jobs and on the economies of non-Party countries.

It makes an important point about one of the serious knock-on effects of the questions' opacity:

Second, the consultation is written in such a technical (and occasionally obscure) language that it excludes everyone but investment law experts. As most of these are arbitration practitioners, the questionnaire in effect invites ISDS-friendly responses by design.

And continues with these excellent points:

Third, the consultation is not in fact a consultation on the TTIP text but on a CETA text that was valid in March but has since progressed further in the CETA negotiations. In addition, the Commission says that it wants to build on CETA but also refer back to existing treaty practice. It is therefore a consultation on a non-existent text; given the significance of the details, this renders the consultation all but useless.

Fourth, the consultation starts from the assumption that ISDS should be in the agreement. This is despite the fact that in the negotiating mandate it states that "the inclusion of investment protection and investor-to-state dispute settlement (ISDS) will depend on whether a satisfactory solution, meeting the EU interests concerning the issues covered by paragraph 23 is achieved".

This gives an indication of the quality and thoughtfulness of the responses that are currently being made to the corporate sovereignty consultation, and of the rich materials that citizens can draw upon in making their own comments. The European Commission certainly won't be able to claim that no one cares whether ISDS is included in TAFTA/TTIP -- the level of public interest in this previously obscure aspect of international trade law is unprecedented. Whether Karel De Gucht, the European Commissioner responsible for the negotiations on the EU side, is willing to take note of all the important points raised above and act on them, is quite another matter, though.

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Filed Under: corporate sovereignty, eu commission, international trade, isds, tafta, trade agreement, ttip

German Politicians Hit Back At USTR Criticisms Of European Cloud Idea

from the well,-what-did-they-expect? dept

Last week we wrote about the USTR suggesting that any attempt by the European Union to create its own local cloud in order to minimize surveillance by the NSA would violate trade agreements. This has not gone down well with European politicians, particularly in Germany, whose Deutsche Telekom was singled out for criticism. Here's what Bavaria's Minister for Europe, Beate Merk, said while visiting the US, as reported by Die Welt (original in German):

"In my talks with the USTR, I've made it clear that our discussions of a "Schengen cloud" [that is, EU-only] has no protectionist background, but is born out of need as a consequence of the lost confidence arising from the NSA business," Merk said to Die Welt.

"We have a duty to ensure that the data of people in the EU is safe from unrestrained access by third parties", Merk added. If there is no offer from the US side for more data protection and data security, one is obliged "to propose one's own ideas on this score," underlined Merk.

She also pointed out that the EU cloud proposals were being made by commercial providers, not put in place through legislation, which means that the accusation of "protectionism" was simply incorrect. A German member of the European Parliament was even more forthright:

"The criticism of the US Trade Representative is bizarre! It seems they've noticed that people have finally had enough and that spying on data will no longer be tolerated."

As Die Welt notes, thanks to the USTR's ill-judged comments on this issue:

The "Schengen cloud" has become a stumbling block for the planned [TAFTA/TTIP] free trade agreement.

Maybe not a very serious stumbling block, but combined with differences over GMOs, hormone beef and cheese names, it's enough to make achieving an "ambitious" agreement, along with its claimed benefits, just that bit more difficult.

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Filed Under: eu commission, eu only cloud, local cloud, surveillance, trade agreements, ustr