EU Commission's Consultation On Corporate Sovereignty Ignores Key Issue, But Shows That Real Transparency Is Possible

from the close,-but-not-close-enough dept

One of the most dramatic developments in the negotiations for TAFTA/TTIP was the announcement that the European Commission would be holding a consultation on the corporate sovereignty chapter. That was a result of the growing concerns about placing corporations on the same level as nations, and allowing the former to sue the latter for alleged loss of future profits caused by policy changes, for example. Here's what the European Commission has to say on 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.

It's deeply troubling to see the European Commission admitting that it will trade off the EU's right and ability to regulate in the public interest in order to protect investors, when the former should always be paramount.

The good news is that anyone can submit their comments, and that they have until June 21 to do so; the bad news is that the consultation is purely about the "modalities for investment protection and ISDS in TTIP" -- not about whether it should be present at all. That's particularly surprising given that most of the document is a litany of ISDS's problems (pdf): lack of clarity, uncertainty, opacity, inconsistency, capricious decisions, biased arbitrators, conflicts of interest, frivolous claims, no possibility for appeals -- the list goes on and on. Even though the consultation seeks input on solving these many and serious problems, the overriding impression is that ISDS is a dangerous and irremediable mess.

However, the consultation document does bring one unexpected bonus: official versions of the equivalent sections of the Canada-EU trade agreement (CETA). The Introduction to the consultation explains why:

Each issue is illustrated using reference texts as examples, taken from other investment agreements and from the approach developed in the EU - Canada (CETA) negotiations, which is the most recent text negotiated by the EU.

The implication is that CETA represents the latest thinking of the European Commission on the subject of corporate sovereignty, and that it will form the basis for its approach in TAFTA/TTIP. But there's a big problem with that. As we reported a few weeks ago, the ISDS chapter in CETA is riddled with problems, some extremely serious.

Of course, the European Commission will probably reply that the consultation is designed to rectify problems that people find. Although that's a fair point, it misses a larger one: that you don't bother fixing problems in something you don't need, and the European Commission has failed to make the case that corporate sovereignty is necessary. It's not needed because both sides have extremely well-established and effective legal systems. And it's not needed because even in its absence, transatlantic investment is already taking place on a massive scale -- as the Commission's own page on trade between the US and EU makes clear:

Total US investment in the EU is three times higher than in all of Asia.

EU investment in the US is around eight times the amount of EU investment in India and China together.

EU and US investments are the real driver of the transatlantic relationship, contributing to growth and jobs on both sides of the Atlantic. It is estimated that a third of the trade across the Atlantic actually consists of intra-company transfers.

Specifically, the US has invested 1.344 trillion euros in Europe, while EU companies have invested 1.421 trillion euros in the US. ISDS is not necessary, because there is simply no problem that needs solving here.

Since the European Commission's consultation fails to explore the central question, it is largely a waste of time. However, it does have the huge virtue of showing that transparency is possible: despite this unveiling of the EU's strategy in the area of investment, the sky is not falling. It thus makes clear why openness can and should be extended to all of TAFTA/TTIP, with the possible exception of a few areas where specific figures would need to be withheld for negotiating purposes. Ironically, the consultation document even explains why transparency is vital:

Transparency is essential to ensure the legitimacy and accountability of the system. It enables stakeholders interested in a dispute to be informed and contribute to the proceedings. It fosters accountability in arbitrators, as their decisions are open to scrutiny.

Exactly the same could be said about TTIP, which means that the European Commission's proposals to increase transparency for the corporate sovereignty chapter should also be applied to the entire agreement:

The EU will include provisions to guarantee that hearings are open and that all documents are available to the public. In ISDS cases brought under TTIP, all documents will be publicly available (subject only to the protection of confidential information and business secrets) and hearings will be open to the public. Interested parties from civil society will be able to file submissions to make their views and arguments known to the ISDS tribunal.

If transparency is essential to ensure the "legitimacy and accountability" of ISDS, it's even more vital for TAFTA/TTIP. The release of this consultation on corporate sovereignty is a welcome first step, but it is only that: the US and EU must routinely release negotiating documents -- at the very latest, as they are tabled, and ideally, before that. Failure to do so simply undermines TTIP's "legitimacy and accountability" and means that the widespread and growing rejection of ISDS could well spread to the rest of the agreement.

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Filed Under: consultation, corporate sovereignty, eu, eu commission, isds, trade agreements, transparency

Austrian Collection Society Pushing Members To Support Collecting Fees For Every Embedded Video

from the the-front-rent-and-the-back-rent dept

The EU Commission has just extended its deadline for comment on its copyright review/reform for an extra 30 days. Those possibly affected by any changes routed through this would do well to add their input, especially as a couple of the issues being considered would turn normal internet sharing into copyright infringement.

Jakob Kucharczyk at Project DisCo (Disruptive Competition) points out two particularly troubling questions under consideration.

How about this question:

“Should the provision of a hyperlink leading to a work or other subject matter protected under copyright, either in general or under specific circumstances, be subject to the authorization of the rightholder?”

A similarly pivotal one:

“Should the viewing of a web-page where this implies the temporary reproduction of a work protected under copyright on the screen and in the cache memory of the user’s computer be subject to the authorization of the rightholder?”

One could simply paraphrase these questions into: would you like to break the Internet as we know it and criminalize Internet users for viewing a web-page? These questions are not theoretical; they are currently in front of the Court of Justice of the EU (CJEU).

If these are codified, embedding a video on a third-party site would trigger a licensing fee. This isn't just a concern for bloggers or others who operate websites. This would affect everyone. Post a link or a video via Facebook or Twitter? That's infringement. Sure, larger sites would probably be covered by blanket licenses, but that's of very little comfort. Throwing permission/licenses into the third-party mix would create problems everywhere.

The second question is even worse. Now, even those simply viewing the posts of others would be infringing simply because a temporary cache copy has been created for the duration of the viewing.

To any reasonable person, both questions are patently ridiculous. For one thing, attempting to extract fees for embedding or linking to content is double-dipping. YouTube and others already pay licensing fees for content hosted at their sites. Attempting to add a layer of "permission" on top of third-party postings not only creates a legal nightmare for social media services, but also creates the very real possibility of encouraging copyright trolling. Anyone posting a link/embedding a video or simply viewing copyrighted content becomes a potential lawsuit target.

Neither of these questions should be answered "yes," not even by the most diehard copyright maximalist. But that's exactly what an Austrian collection society (AKM) is pushing for, according to this report sent in by Techflaws.

AKM has sent a letter to its 20,000 members, asking for them to comment on the EU Commission's copyright reforms. All well and good, except that AKM seriously wants the first of these considerations to become EU law and has apparently altered the EU Commission's questionnaire in hopes of adding 20,000 supporters' "voices" to the collected comments.

The original questionnaire looks like this:


According to FutureZone, AKM sent this out, but removed everything but the "Yes" option from this question. It also added some canned wording in the explanation area, suggesting "reasonable compensation" for the embedding of music videos.

AKM fortunately didn't make up its members' minds on cached copies, but it still assumes an embedded video should be subject to double-dipping -- once from the original host and once more from anyone embedding it.

AKM's statement on its site (posted Feb. 5th) expresses its displeasure with the EU Directive, which it obviously feels offers inadequate compensation.

The EU Directive does not create a fair, level playing field and does not match Austrian standards.

"Fair and level" isn't really what AKM is looking for. That much is apparent in its alteration of the original EU Commission questionnaire.

AKM's stance is being embraced by perhaps the most infamous of collection societies, GEMA. Spokeswoman Ursula Goebel said GEMA was aligned with AKM. Hyperlinks and cached copies aren't necessarily an issue (or at least one neither collection society feels it can safely approach at this time) but embedded videos are. According to Goebel, embedded videos should be licensed because the end user isn't aware of where the videos originate. In other words, those embedding videos should pay a fee because viewers might think the blog, etc. is the originating source. Taxing one person for someone else's ignorance hardly sounds like a logical reason for adding licensing fees to embeds. The article goes on to question how GEMA hopes to avoid double-dipping on licensing fees (it doesn't -- see below) while noting that this is perfectly in line with GEMA's business model, which is predicated on the assumption that any sharing of content should be subject to licensing fees. (A hearty thank you to Jakob Kucharzyk for his translation help.)

GEMA isn't shy about its double-dipping aspirations and has been fighting YouTube for a higher fees for several years now. To date, the end result has been little more than the endless aggravation of German YouTube viewers, who are greeted with the quizzical "Sorry" faces at a disproportionately higher rate than any other nation in the world.

The upside is that the comment period has been extended. The most hardline collection societies don't appear to be overly eager to shatter the web in search on income, but AKM's apparent "remix" of the EU Commission's questionnaire (and GEMA's thumbs-up) shows how far they're willing to go to "tax" a stream both coming and going.

Filed Under: austria, collection society, copyright, embedding, eu commission

EU Commission Redefines Corporate Lobbyists As 'Civil Society' To Pretend To Be Transparent In TAFTA/TTIP

from the bare-faced-cheek dept

The fact that the USTR continues to peddle the line that TPP is "the most transparent trade negotiation in history," despite a dogged refusal to reveal its negotiating positions to the public (to say nothing of any draft texts), indicates that the US government is acutely aware that its attitude towards transparency in TPP and TAFTA/TTIP is both unpopular and unjustifiable. Meanwhile, on the other side of the Atlantic, the European Commission too is desperately trying to convince people that it is conducting the TTIP negotiations in a fully open way. For example, earlier this week, the Commission held what it called an "Outreach" session in Brussels:

As part of an ongoing commitment to transparency, DG TRADE is organising a second Civil Society Dialogue to discuss progress and to exchange views on the TTIP.

As well as trumpeting its "ongoing commitment to transparency," the European Commission claims that this is a "Civil Society Dialogue." On the same Web page, there's a list of who had registered to participate in this session. Here are some of the "civil societies" that caught my eye in a quick scan:

ICMP, the global voice of music publishing
Committee for European Construction Equipment
European Association of Sugar Traders
European Agricultural Machinery
American Chamber of Commerce to the European Union
European Petroleum Industry
European Banking Federation
European Patent Office
Confederation of British Industry
Confederation of European Community Cigarette Manufacturers

Putting those and similar business organizations to one side, I came up with around 26 genuine civil society groups out of a total of 196 registered entities. A Swedish TTIP site came up with about 30. So even allowing for some vagueness in definitions, I think it's safe to say that fewer than 20% of those that had signed up for the "Civil Society Dialogue" were actually civil societies; the remaining 80% were essentially lobbying groups for European and US companies.

What this represents is an extraordinary -- and outrageous -- rebranding exercise. The European Commission clearly wants to be able to point to these meetings as "proof" that it is acting transparently, and engaging with civil society as well as business. But the facts prove the exact opposite: the vast majority of the people there came from corporate organizations representing powerful industry groups on both sides of the Atlantic. The "Civil Society Dialogue" turns out to be a sham and yet another opportunity for companies to push their agendas, so that the European Commission can claim it has wide support for its anti-democratic, pro-corporate negotiating positions.

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Filed Under: civil society, dg trade, eu commission, lobbyists, tafta, ttip

European Commission Desperately Tries To Justify Inclusion Of Corporate Sovereignty In TAFTA/TTIP; Fails Dismally

from the is-that-really-the-best-you've-got? dept

Techdirt has been writing about corporate sovereignty (also known as investor-state dispute settlement -- ISDS) for a year now. Back in April, we noted that it was likely to be part of the TAFTA/TTIP negotiations, which were just about to start. Since then, more and more people have woken up to its dangers, and called for corporate sovereignty to be dropped from the negotiations.

The European Commission is evidently feeling the heat, because it has put together a couple of documents with the evident aim of justifying the inclusion of ISDS in TAFTA/TTIP, and sent them to the committee that will be writing the final report on whether or not the European Parliament should accept the TAFTA/TTIP agreement once finalised. The first document is entitled "EU--Canada CETA: main achievements" (pdf and embedded below). It provides us with a rare official glimpse of what is in the still-secret trade agreement between Canada and the EU.

Many of the "clarifications" to corporate sovereignty concepts listed there are welcome: for example, in defining what loose concepts like "fair and equitable treatment", and "indirect expropriation" really mean. But the credibility of the document is undermined by the very first point:

The CETA reaffirms the right of the EU and Canada to regulate to pursue legitimate public policy objectives such as the protection of health, safety, or the environment.

The fact that the European Commission even feels a need to affirm this means that it recognizes that corporate sovereignty does, indeed, threaten the fundamental rights of nations to legislate freely, and without fear of being hauled up before ISDS tribunals. And however much the European Commission may try to "clarify" the corporate sovereignty provisions, clever lawyers will always find ways for their clients to sue countries for daring to bring in laws protecting health, safety or the environment that cause profits to dip.

This means that there is only one sure way to preserve the sovereignty of nations, and prevent them becoming the object of multi-billion dollar lawsuits, as is happening currently under other trade agreements like NAFTA, and that is to remove ISDS completely. Evidently worried by this argument, the European Commission has put together another document, a "factsheet" called "Investment Protection and Investor-to-State Dispute Settlement in EU agreements" (pdf and embedded below) that tries to head it off.

The opening paragraph once again makes a false equivalence between the right of states to regulate and the need to protect investors:

Investment protection provisions, including investor-state dispute settlement are important for investment flows. They have generally worked well. However, the system needs improvements. These relate to finding a better balance between the right of states to regulate and the need to protect investors, as well as to making sure the arbitration system itself is above reproach e.g. transparency, arbitrator appointments and costs of the proceedings.

The basic argument of the fact sheet can be found in the following paragraphs (bolded phrases in original):

Investment is a critical factor for growth and jobs. This is particularly the case in the EU, where our economy is very much based on being open to trade and investment. Investment is key in creating and maintaining businesses and jobs. Through investment, companies build the global value chains that play an increasing role in the modern international economy. They not only create new opportunities for trade but also value-added, jobs and income. That is the reason why trade agreements should promote investment and create new opportunities for companies to invest around the world.

Companies investing abroad do encounter problems which -- for a variety of reasons -- cannot always be solved through the domestic legal system. These problems range from the rare, but dramatic, occurrences of expropriations by the host country by force, discrimination, expropriation without proper compensation, revocation of business licences and abuses by the host state such as lack of due process to not being able to make international transfers of capital.

Precisely because of these risks, provisions to protect investments have been part and parcel of all the 1400 bilateral agreements entered into by EU Member States since the late 1960s. The EU itself is party to the Energy Charter Treaty, which also contains provisions to protect investments and investor to state dispute settlement. Worldwide, there are over 3400 such bilateral or multiparty agreements in force containing provisions to protect investments. They provide guarantees to companies that their investments will be treated fairly and on an equal footing to national companies. By creating legal certainty and predictability for companies, investment protection is also a tool for states around the world to attract and maintain FDI [foreign direct investment] to underpin their economy.

In essence, it's a kind of syllogism: investment is critically important for the EU economy; investors needs corporate sovereignty guarantees to protect their investment; so TAFTA/TTIP must contain ISDS to "attract and maintain" foreign investment -- in this case, from the US. The clear implication is that without corporate sovereignty, US investors will be reluctant to put their money in Europe, and vice versa.

The European Commission has another page on its Web site that provides some context. Here's what it says about the current levels of investment between the two trade blocs:

Total US investment in the EU is three times higher than in all of Asia.

EU investment in the US is around eight times the amount of EU investment in India and China together.

EU and US investments are the real driver of the transatlantic relationship, contributing to growth and jobs on both sidesof the Atlantic. It is estimated that a third of the trade across the Atlantic actually consists of intra-company transfers.

In other words, even though corporate sovereignty is not enshrined in any treaties between the US and EU, the scale of investment (in both directions) is unmatched anywhere else on the planet. It would seem that the European Commission's argument for the necessity of ISDS falls down at some point. It's not hard to see where.

The second paragraph quoted above from the fact sheet lists some of the "rare" problems that arise when investing in foreign countries: "expropriations by the host country by force, discrimination, expropriation without proper compensation, revocation of business licences and abuses by the host state such as lack of due process to not being able to make international transfers of capital." Does the European Commission seriously think either the EU or US is going to engage in any of those activities, or that, if they ever did, investors in those areas would be unable to use local courts to seek redress?

The European Commission's argument in favor of corporate sovereignty is invalid because it mixes two quite distinct situations. It tries to use the problems of investment in just a few emerging economies -- that is, ones without stable governments or honest judiciaries -- which gave rise to ISDS chapters in the first place, and then pretend that similar problems are an issue in the US and EU, and so require the same solution: corporate sovereignty.

But that's simply not true. TAFTA/TTIP is a completely different kind of agreement, quite unlike any of the "1400 bilateral agreements entered into by EU Member States since the late 1960s." Placing arbitration tribunals above the well-developed legal systems of both the EU and US in order to encourage investment that is already taking place on a massive scale, is simply nonsensical. It underlines the European Commission's obvious inability to come up with any real justification for the inclusion of a corporate sovereignty chapter in TAFTA/TTIP.

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Filed Under: corporate sovereignty, eu commission, investor state dispute settlement, isds, tafta, ttip

European Commission Report Says Open Access At 'Tipping Point'

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

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

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

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

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Filed Under: eu commission, european commission, open access

EU's Chief Negotiator Has Learned Nothing From ACTA, Will Negotiate TAFTA In Secret

from the not-a-good-idea dept

The EU trade Commissioner, Karel De Gucht, was a driving force behind ACTA, and apparently he's learned nothing about why ACTA failed so spectacularly in Europe. MEP Christian Engstrom pointed out to De Gucht that a big part of the reason why ACTA failed was the lack of transparency, and asked him to be more transparent with TAFTA (the Trans Atlantic Free Trade Agreement, but which many are calling TTIP -- for Transatlantic Trade and Investment Partnership). De Gucht's response was to insist that he cannot negotiate transparently, and then to outright mock Parliament for suggesting that it has a role in the negotiations.

... on the subject of openness, I have no problem saying what we are doing and what we want to achieve and, when not speaking in public, how I want to achieve this. But you are all politicians. So you should know – and I think you do know – that you cannot negotiate openly. You do not do that in your parties either; you do not do that in your constituencies. You need to focus – and yes, of course we have to report on what we are doing, explaining why we are doing things and why we are making some concessions; we will have to make concessions in the course of these negotiations. But you need a certain degree of confidentiality in negotiations. You also need it because your counterpart is asking for it; if not, you cannot negotiate.

It is interesting that it seems that there is a copy of one of the drafts of the negotiating mandate. So what? It is a draft. The Presidency has, of course, to make sure that they come to an agreement within the Council, so they put forward possible ways to get out of any difficulties that we have to deal with. Immediately, very vocal Members of this Parliament say that this is a scandal and that we are traitors and cannot be trusted. Of course you can trust me, because in the end you can say ‘No’. You have done so in the past. You said ‘No’ to ACTA: I am still not convinced that it was the right choice, but you decided to do so and that was how it was. You have the final word.

But a parliament is not created to negotiate. It is not its job. I think I have been in a parliament for a longer time than most of you –25 years. Maybe there are some who have been in a parliament as long – Mr Brok has already left, but he has certainly been in a parliament for more than 25 years – but not very many. I have never sought to negotiate an agreement from within a parliament because it simply does not work.

What you have to do – and you do it in an eloquent way – is indicate the important points that you want to mention, that you want me to look at and which you will question me about. You will scrutinise me and in the end will vote against me if I do not do that. But a parliament cannot negotiate, because a parliament only exists as a body when it votes. Outside of voting you take up individual positions. You cannot negotiate with 20, 30 or 50 different positions. That is not possible. You need to negotiate on the basis of a mandate, and then, of course, you have to demonstrate that you have been following your mandate.

Of course, MEPs weren't asking to let Parliament negotiate the deal, just for some transparency in what was being negotiated in the public's name. De Gucht's answer is misleading. Plenty of international agreements are negotiated with significantly greater transparency than what happened in ACTA, what's happening now with TPP and what's likely with TAFTA/TTIP. Governments can and should reveal the basic things they are negotiating for, to allow for some level of public comment. But that's not what happens. Things are negotiated in secret, in backrooms, with the help of industry lobbyists, and at the end we're given a "take it or leave it" document, which then (in most cases) is rammed through with little debate. It's the opposite of democracy.

Of course, ACTA showed that the public can rise up and take a stand against this, and Engstrom points out that if they did it for ACTA, they can do it again:

The positive thing about the whole ACTA affair was that there are now hundreds of thousands of European citizens who have, at least once, been demonstrating on the streets of various European cities against the trade agreement. There are lots of citizens now who take an interest in these agreements.

This is a very positive thing, but by insisting on the same kind of secrecy – only handing out secret documents to the members of the INTA Committee – the Commission is setting itself up for the same kind of failure. I would urge you to re-think this and become transparent.

It appears that De Gucht has decided not to re-think this, and to take the position that the ACTA response was an aberration. I'm sure that will play well with all the people who fought against ACTA.

Filed Under: acta, christian engstrom, eu, eu commission, eu parliament, karel de gucht, protests, secrecy, tafta, transparency, ttip

EU Commission Sued For Refusing To Reveal Trade Agreement Documents They Shared With Lobbyists

from the right-to-know dept

A recurrent theme here on Techdirt is the lack of transparency when international agreements and treaties are being drawn up. That's increasingly recognized not just as problematic, but simply unacceptable in an age when the Internet makes it easy to provide both access to draft documents and a way for the public to offer comments on them.

Despite this growing pressure, nothing much has happened on either side of the Atlantic as far as providing greater openness for major negotiations is concerned. Perhaps frustrated by this lack of movement, the transparency organization Corporate Europe Observatory decided to take legal action against the European Commission back in February over the secret trade talks between the EU and India.

As the detailed history of this case (pdf) explains, the European Commission was apparently quite happy to pass on copies of certain documents to industry associations, but when Corporate Europe Observatory asked for the same, they only received censored versions. The lawsuit accuses the European Commission of discriminating in favor of corporate lobby groups and of violating the EU's transparency rules. As the Corporate Europe Observatory asks:

how can documents that the Commission has already shared with the business community at large suddenly become confidential and a threat to the EU's international relations when a public interest group asks for their disclosure? This is the core question raised by the lawsuit.

And it points out:

What is at stake in the lawsuit is whether the Commission can continue its habit of granting big business privileged access to its trade policy-making process by sharing information that is withheld from the public. This practice not only hampers well-informed and meaningful public participation in EU trade policy-making, it also leads to a trade policy that, while catering for big business needs, is harmful to people and the environment in the EU and the world.

The European court will be handing down its verdict on 7 June. If the judges side with transparency, it could have a major impact on how the imminent TAFTA/TTIP negotiations between the EU and US are conducted. If they don't, then the battle for the public's right to know what is being agreed in its name will doubtlessly continue.

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Filed Under: eu, eu commission, india, lobbyists, public interest, secrecy, trade agreements
Companies: corporate europe observatory

EU Commission Wants More Copyright Licensing, But Not Creative Commons Or Fair Use

from the that'll-make-the-lawyers-happy dept

While there's no doubt that copyright licensing is a mess that is often holding back key innovations online, it's a bit worrisome to hear about how the EU Commission is exploring the issue. It has set up a "Licenses for Europe" campaign, but designed in a way that locks in a predetermined conclusion that the only way to deal with locked up content in Europe is to get the big copyright holders to agree to more easily determined licenses. Again, this is not necessarily a bad thing, but it ignores the larger picture: including the fact that most content produced today is coming from individuals and not as a part of a larger industry.

La Quadrature du Net explains why the whole setup is a problem:

Instead of planning for a broad reform that would break away with full-on repression of cultural practices based on sharing and remixing, the Commission is setting up a parody of a debate. 75% of the participants to the working-group concerning “users” are affiliated with the industry and the themes and objectives are defined so as to ensure that the industry has its way and that nothing will change. Through this initiative, the EU Commission shows its contempt of the many citizens who participated in defeating ACTA and are still mobilized against repressive policies.

La Quadrature du Net is registered to participate in a working-group of the new “Licences for Europe” initiative called “User-Generated Content”. Everything in its name, theme and mission is biased to fit the views of the entertainment industry – which represents more than 3/4 of the participants! – The working group is meant to focus on “User-Generated Content”, as if works created by Internet users were a different category from “real” cultural works; as if today, everyone was not on an equal footing to participate in culture. The Commission's framing of discussion is subservient to major industrial actors who keep attacking their users' cultural practices and ignore the urgent need to reform copyright.

Just starting out from the point of view, that "user generated content" is somehow a different category than "content," itself is problematic, but much more problematic is the fact that there is no interest from this effort in things that would actually help out on a large scale: such as recognizing that copyright doesn't make much sense for many of these works, and that sharing and building on others' works is a part of how culture works (and that "licenses" can often get in the way of such things). In fact, the EU Commission made sure that no discussions of things like fair use were to be discussed, since the point of the discussion was just "licenses."

The working group is supposed to work only on licensing – contracts by the industry in which it controls everything – rather than discuss new exceptions to copyright, which would represent the general interest by allowing not-for-profit sharing and remixing of digital works.

This is really unfortunate. Because when you start from the position of licensing everything, you ignore the fact that not everything needs to be licensed. And, as a result, you end up with over-licensing, which is a real problem. Apparently, things got even worse once the sessions began. Even though there were rules in place designed to keep the details of the proceedings mostly secret, some indications from inside were that things were not going well, thanks to some tweets from COADEC.

Industry reps seemed to have absolutely no interest in discussing things like fair use or other "exceptions" to copyright. Someone brought up fair use, and apparently the response was that "fair use is from the 20th century" and then annoyance at the fact that "exceptions" were even being discussed since "we should just talk about licenses." Moderators obliged by shutting down any talk of exceptions.

Someone tried to point out that this seemed to be putting the cart before the horse, asking whether or not there has been any evaluation done as to whether or not licensing was really the best solution, and the moderator responded "well we want to deliver something." We've heard this before, many times. Politicians have no interest in making sure the solution they're pushing for makes sense or works, so long as they're seen as "doing something." We saw that nearly a decade ago when Senator Orrin Hatch tried to push his INDUCE Act, and when quizzed about it, he admitted that it might cause problems, but he had to "do something" or else.

Further making a mockery of the whole thing, someone brought up Creative Commons licensing... and that conversation was also shut down as a "certain industry" claimed it was "too early" to discuss such things. Apparently, this "certain industry" doesn't realize that Creative Commons is a form of licensing too. Like too many maximalists, they consider Creative Commons not to be a form of licensing, but another form of "copyright exceptions," (which it is not).

All in all, the whole session appears to have made a mockery of any attempt at real, meaningful copyright reform. One more comment from the session sort of highlighted the whole problem. As the moderator and people from "certain industries" shut down all talk of exceptions, and focused solely on how to set up a system with more and more licenses, an attendee asked a simple, pointed question:

Attendee asks, who gives a licence for mining the Internet?

And that, right there, encapsulates the entire problem. If you think that we shouldn't be talking about exceptions, and that everything requires licensing, what you're really saying is that search engines are illegal. Searching the internet without "permission" is illegal. And that's the world that the EU Commissions seems to think we should be heading towards.

Yes, locked up content is a problem, and fixing licensing is one part of the solution, but it cannot be done absent a more comprehensive look at the issues of the internet and copyright today. Completely ignoring things like fair use or other "exceptions" to copyright (I prefer to think of them as the rights of the public rather than "exceptions") means you get bad plans with bad results that border on the ridiculous.

Filed Under: creative commons, eu commission, europe, exceptions, fair use, licensing, public rights

Google Competitors Spitting Mad About FTC Closing Case; Promise That Europe & Texas Will Get It Right

from the we'll-see-about-that dept

With the FTC closing its antitrust case against Google, the group of Google's competitors who were the main instigators behind the effort aren't giving up easily. Gary Reback, the lawyer whose entire persona is wrapped up in being "the lawyer who gets the FTC to attack big companies" (he also led the charge against Microsoft a decade and a half ago) issued an incredibly combative statement:

“I've been doing this almost 40 years, and I've done dozens if not scores of government investigations on both sides, and I have never seen a more unprofessional, incomplete, incompetent investigation,” said Gary Reback, a Silicon Valley lawyer who represented some of Google's complainants before the FTC.

Really, now? In the briefing the FTC gave about the situation, FTC boss, Jon Liebowitz, indicated that the Google competitors' strategy of attacking the FTC when it was suggested that there might not be enough evidence for antitrust didn't help convince the FTC to suddenly create evidence out of thin air. Apparently, Reback would prefer that the FTC do stuff just because he says so, even as the evidence for Reback's claims are completely lacking.

Meanwhile, the laughably named "FairSearch" group -- a collection of Google competitors, who teamed up to create a publicity campaign solely with the goal of attacking Google over antitrust claims, came out with its own hilarious statement, which could be summarized as "it's not over yet! There's still Europe! And Texas!"

“The FTC's decision to close its investigation with only voluntary commitments from Google is disappointing and premature, coming just weeks before the company is expected to make a formal and detailed proposal to resolve the four abuses of dominance identified by the European Commission, first among them biased display of its own properties in search results.

The FTC’s settlement is by no means the last word in this case, leaving the FTC without a major role in the final resolution to the investigations of Google's anti-competitive practices by state attorneys general and the European Commission. The FTC’s inaction on the core question of search bias will only embolden Google to act more aggressively to misuse its monopoly power to harm other innovators.

State attorneys general who reportedly disagreed with today's announcement by the FTC have an important role to play in ensuring both that Google is not allowed to continue practices that hurt every American business through artificially high advertising costs, and to demand that whatever changes Google is forced to make in Europe also apply for U.S. consumers who risk losing innovation because of Google's aggressive abuse of its dominance.

It is true that the EU Commission is still doing its own investigation, and given the EU's general feelings that "big" (and "American") must somehow be "bad," it's likely that they'll come down a bit more harshly on Google, as they did on Microsoft. Similarly, some state Attorneys General (mainly Texas) who have been grandstanding against Google and other tech companies for years will likely grouse about this -- but their ability to do anything about it may be fairly limited, given the lack of any actual evidence of harm.

In the end, this is coming off as even more sour grapes from companies who chose to focus on whining to government, rather than competing in the marketplace. In the future, instead of spending so much on lobbyists and lawyers, perhaps they could focus on building better products that the market wants.

Filed Under: antitrust, attorneys general, competition, eu commission, ftc, gary reback, texas
Companies: fairsearch, google

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