Leading Open Access Supporters Ask EU To Investigate Elsevier's Alleged 'Anti-Competitive Practices'

from the are-you-listening,-Commissioner-Vestager? dept

Back in the summer, we wrote about the paleontologist Jon Tennant, who had submitted a formal complaint to the European Commission regarding the relationship between the publishing giant Elsevier and the EU's Open Science Monitor. Now Tennant has joined with another leading supporter of open access, Björn Brembs, in an even more direct attack on the company and its practices, reported here by the site Research Europe:

Two academics have demanded the European Commission investigate the academic publisher Elsevier for what they say is a breach of EU competition rules that is harming research.

Palaeontologist Jon Tennant and neuroscientist Björn Brembs, who are both advocates for making research results openly available, say the academic publishing market "is clearly not functioning well" in an official complaint about Elsevier's parent company RELX Group.

The pair claim RELX and Elsevier are in breach of EU rules both due to general problems with the academic publishing market and "abuse of a dominant position within this market".

The 22-page complaint spells out what the problem is. It makes the following important point about the unusual economics of the academic publishing market:

For research to progress, access to all available relevant sources is required, which means that there is no ability to transfer or substitute products, and there is little to no inter-brand competition from the viewpoint of consumers. If a research team requires access to knowledge contained within a journal, they must have access to that specific journal, and cannot substitute it for a similar one published by a competitor. Indeed, the entire corpus of research knowledge is built on this vital and fundamental process of building on previously published works, which drives up demand for all relevant published content. As such, publishers do not realistically compete with each other, as all their products are fundamentally unique (i.e., each publisher has a 100% market share for each journal or article), and unequivocally in high demand due to the way scholarly research works. The result of this is that consumers (i.e., research institutions and libraries) have little power to make cost-benefit evaluations to decide whether or not to purchase, and have no choice but to pay whatever price the publishers asks with little transparency over costs, which we believe is a primary factor that has contributed to more than a 300% rise in journal prices above inflation since 1986. Thus, we believe that a functional and competitive market is not currently able to form due to the practices of dominant players, like Elsevier, in this sector.

Most of the complaint is a detailed analysis of why academic publishing has become so dysfunctional, and is well-worth reading by anyone interested in understanding the background to open access and its struggles.

As to what the complaint might realistically achieve, Tennant told Techdirt that there are three main possibilities. The European Commission can simply ignore it. It can respond and say that it doesn't think there is a case to answer, in which case Tennant says he will push the Commission to explain why. Finally, in the most optimistic outcome, the EU could initiate a formal investigation of Elsevier and the wider academic publishing market. Although that might seem too much to hope for, it's worth noting that the EU Competition Authority is ultimately under the Competition Commissioner, Margrethe Vestager. She has been very energetic in her pursuit of Internet giants like Google. It could certainly be a hugely significant moment for open access if she started to take an interest in Elsevier in the same way.

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Filed Under: academic journals, anti-competitive, antitrust, competition, eu, european commission, open access
Companies: elsevier

European Commission May Join Gates Foundation And Wellcome Trust In Becoming An Open Access Publisher

from the if-you-want-a-job-done-properly,-do-it-yourself dept

Open access isn't a new idea -- the term was first defined back in 2002, and arguably the first examples go back even further to the founding of arXiv.org in 1991 (pdf). And yet progress towards making all academic knowledge freely available has been frustratingly slow, largely because hugely-profitable publishers have been fighting it every inch of the way. In response to that intransigence, academics have come up with a variety of approaches, including boycotts, mass cancellation of subscriptions, new kinds of overlay journals and simply making everything available with or without permission. Here's another interesting move to open up publishing, reported by the journal Science:

One of Europe's biggest science spenders could soon branch out into publishing. The European Commission, which spends more than €10 billion annually on research, may follow two other big league funders, the Wellcome Trust and the Bill & Melinda Gates Foundation, and set up a "publishing platform" for the scientists it funds, in an attempt to accelerate the transition to open-access publishing in Europe.

It was quite surprising to see the Wellcome Trust start its own rapid-publishing unit, called Wellcome Open Research, a move that seems to have encouraged the Bill & Melinda Gates Foundation to follow suit with the similar Gates Open Research platform, due to start publishing later this year. For the EU's main executive body to do the same is even more extraordinary. It's true that there has been no official announcement about the European Commission's publishing move, but the Science article suggests that it is likely:

A commission spokesperson says the two charities [Wellcome and Gates Foundation], which opted for a system in which papers are reviewed after publication, are "models," but that the commission is only "considering" the idea. But last week in Berlin, at a closed meeting of the Open Science Policy Platform (OSPP), European Commissioner for Research, Science and Innovation Carlos Moedas suggested a "decision" to create the platform had already been made, says Michael Mabe, CEO of the London-based International Association of Scientific, Technical, and Medical Publishers (STM). OSPP member Sabina Leonelli of the University of Exeter in the United Kingdom, who tweeted from the meeting, confirms Mabe’s assessment.

For three giant funding organizations -- the Wellcome Trust, the Bill & Melinda Gates Foundation and the European Commission -- to be driven to take this step shows just how frustrated they all are with the academic publishing world's unhelpful response to two decades of calls for open access. It also underlines that they now seem determined to open up the research they fund by bypassing completely the traditional publishers who are proving so obstructive.

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Filed Under: european commission, open access, research
Companies: gates foundation, wellcome trust

Six Key Flaws In The EU's Proposed 'New' Corporate Sovereignty Court

from the only-six? dept

A few months back, Techdirt wrote about the European Commission's proposal to replace the traditional corporate sovereignty system -- generally known as "investor-state dispute settlement " (ISDS) -- with what it called the "Investment Court System" (ICS). That seemed to us little more than a re-branding exercise; now an international investment law scholar has weighed in on the issue with his own, rather more expert opinion. Gus Van Harten is Associate Professor at York University in Canada. According to his biography, he's written a book proposing:

the establishment of an international investment court to ensure independence and accountability in the international adjudication of regulatory disputes between states and investors.

Despite that -- or maybe because of that -- Van Harten is none too impressed with the European Commission's plans, as the title of his new paper makes clear: "Key flaws in the European Commission’s proposals for foreign investor protection in TTIP". He singles out six in particular.

1. ISDS is alive in the EC's proposals

As Techdirt noted back in September, ICS isn't really very different from ISDS. Van Harten points out one aspect of corporate sovereignty tribunals that really has no place in any "new and improved" approach:

ICS "judges" would continue to have a financial interest in future claims because they are still paid a (lucrative) daily fee in a context where only one side -- foreign investors -- can bring claims, they would continue to operate under the usual ISDS arbitration rules, they would not have to meet the requirements for judicial appointment in any country, and they would not even be barred from working on the side as ISDS arbitrators. I am prompted to say that, if ISDS is "dead", as some officials have claimed, then the EC’s ICS proposal reminds me of a zombie movie.

The second flaw:

2. The case still has not been made for foreign investor protection in the TTIP

Van Harten writes:

Any proposal to give special privileges or public subsidies to any economic actor -- here, the largest and wealthiest in the world -- calls for a strong justification based on clear evidence of the public benefit. The absence of such a justification and evidence has been a serious omission in the EC's proposals for foreign investor protection from the very start.

The third serious flaw is similarly without any justification on the part of the European Commission:

3. The EC's proposals are fundamentally imbalanced

That's because it gives investors huge privileges without any corresponding responsibilities. Van Harten has a practical suggestion for remedying that:

The EC should establish actionable responsibilities for foreign investors by allowing a host country or affected third party, such as a trade union or a local community, to bring a claim (or, more modestly, a counter-claim) against a foreign investor in the very same process that is used to enforce foreign investor protections. That is a basic test for evaluating balance in the EC's proposals.

The fourth flaw concerns one of the main claimed improvements of ICS over ISDS:

4. The EC's proposals put poison pills into the "right to regulate"

The European Commission has made much of the fact that its new ICS will enshrine the "right to regulate." In his paper, Van Santen explores in detail exactly why that claim is mere window-dressing. He even goes so far as to say:

These textual details greatly undermine the EC's proposal on the right to regulate and the right to change the legal and regulatory framework. Indeed, they suggest that the EC is pretending to protect the right to regulate, while leaving catches in the text that return us to the usual concerns about ISDS.

The fifth flaw concerns a point that many have made about ISDS in the context of TTIP:

5. The EC's proposal remains disrespectful of domestic institutions, including domestic and European courts

Here's why:

The EC's proposal is still premised on an assumption that EU and US courts are so flawed that foreign investors should be able to bring an ISDS claim without having to demonstrate that it would be unreasonable for the foreign investor to seek relief first in the courts

As well as being an insult to these rather well-developed legal systems, and the people who work in them, it also has some serious negative consequences:

Foreign investors can choose to avoid the [domestic] courts, they can turn back from the courts at any point to pursue ISDS instead, and they can use ISDS to seek compensation for a court's decisions at any level.

In other words, ICS gives investors the best of all possible worlds, while the rest of us:

must deal with the usual risks of democracy and regulation in the usual ways: by taking part in the democratic process, by buying insurance, by bargaining for strong dispute settlement clauses in their contracts with government, or by relying -- like everyone else -- on the [domestic] courts.

Finally, Van Harten points out that if the European Commission wants to fix a system it admits is broken, it seems to be going about things in the wrong way:

6. If the EC is serious about an international investment court, why is it proposing to expand ISDS in the TTIP?

He means a real international investment court, not the ICS, which is far from being that.

while the EC has signalled that it will work toward an fullblown international court to replace ISDS, if this is the goal then the EC’s sequencing appears backwards. Logically, the EC should be pushing to transform existing treaties so that ISDS is replaced with an international court before the EC goes to the U.S. with its proposals. In past, the U.S. government has not welcomed the idea of new international courts. The fact that the EC has done the opposite -- by floating a version of ISDS with the U.S. before pursuing a proper court with other countries -- seems to undermine the EC's credibility on the issue of an international investment court.

Van Harten's paper is particularly valuable at a time when the European Commission is trying hard to propagate the idea that the problem of corporate sovereignty in TAFTA/TTIP is now "solved" by its ICS proposal. Van Harten's analysis shows that is very far from the case, and that corporate sovereignty remains one of the most problematic aspects of a deal that is itself highly problematic.

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Filed Under: corporate sovereignty, europe, european commission, gus van harten, ics, isds, tafta, tpp, ttip

EU Proposes To Reform Corporate Sovereignty Slightly; US Think Tank Goes Into Panic Mode

from the who's-afraid-of-a-little-rebranding? dept

Back in May, we wrote about the European Commission's sharing "concerns" about corporate sovereignty chapters in trade agreements. The Commissioner responsible for trade, Cecilia Malmström, even went so far as to say that the present investor-state dispute settlement (ISDS) system was "not fit for purpose in the 21st century." But rather than removing something that is unnecessary between two economic blocs with highly-developed and fair legal systems, she instead proposed to "reform" it, and to start working towards an international investment court.

That idea was dismissed almost immediately by the US Undersecretary for International Trade at the Commerce Department, Stefan Selig. Despite that, the EU seems set on replacing today's corporate sovereignty with some kind of court. In a non-binding but important set of recommendations to the European Commission regarding TTIP, the European Parliament called for the following:

to ensure that foreign investors are treated in a non-discriminatory fashion, while benefiting from no greater rights than domestic investors, and to replace the ISDS system with a new system for resolving disputes between investors and states which is subject to democratic principles and scrutiny, where potential cases are treated in a transparent manner by publicly appointed, independent professional judges in public hearings and which includes an appellate mechanism, where consistency of judicial decisions is ensured, the jurisdiction of courts of the EU and of the Member States is respected, and where private interests cannot undermine public policy objectives;

The wording is extremely vague, and leaves plenty of room for a kind of ISDS-Lite to be agreed between the EU and US in TAFA/TTIP. Many in Europe regard the proposal as little more than a face-saving compromise that allows the opponents of ISDS to claim that "this is the end of ISDS in trade deals," while allowing supporters to maintain that it has merely been re-branded, rather than removed.

We don't know what the US government thinks of the idea, but we do have a fascinating post on the proposal from The Heritage Foundation, which describes its mission as "to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense." Its views on the EU's corporate sovereignty reforms are quite clear:

The EU's proposal, backed by a vote of the European Parliament on July 8 -- that the TTIP should establish a permanent investment court, not an ISDS mechanism -- is a bad solution in search of a non-existent problem. ISDS mechanisms work well to secure basic legal protections for a signatory state's nationals abroad. The U.S. should firmly reject the EU's proposal and insist that TTIP establish an ISDS.

The rest of the post provides rare insights into the thinking of the pro-ISDS, pro-big business camp in the US. Bizarrely, it describes corporate sovereignty tribunals as:

designed to safeguard fair, unbiased, and transparent legal processes by providing independent and impartial arbitration.

That's an odd description of processes that take place in secret, with no case law to guide decisions, no limits to damages, no right to appeal, and where the tribunal members are corporate lawyers who can also act for the same companies that appear before them in other cases, because there are no rules governing conflicts of interest. But more interesting than this topsy-turvy view of reality is the following revealing comment:

because any case inside the EU can ultimately reach the European Court of Justice (ECJ), and the ECJ is mandated to make decisions that promote deeper European integration, it is not clear how the U.S. can rely on the ECJ to rule fairly when the EU seeks to promote integration in ways that discriminate against the U.S.

Essentially, then, The Heritage Foundation objects to Europe's highest court doing its job of strengthening the European Union, and wants supranational corporate sovereignty tribunals as an option to overrule its judgements -- confirming critics' worst fears about ISDS undermining democracy. The post then goes on to list a number of problems that the Foundation sees with the EU's proposed international investment court, many of which again display a curious inversion of reality. For example:

[an investment court] would have limited accountability and few checks and balances.

That is precisely the situation with corporate sovereignty tribunals, which have no checks or balances, and no limits to their power, as clearly shown by the $50 billion award made against the Russian government last year. The post concludes:

The EU is advancing this proposal in a futile and wrong-headed effort to win over critics who are fundamentally skeptical about freer trade. These critics had not previously raised any objections to the many ISDS mechanisms to which EU nations are already party: They began to complain only when the U.S. became involved.

That's true, because previous trade agreements incorporated ISDS as a mechanism for rich Western countries -- including those in the EU -- to use to sue poor, developing countries. Since the latter had few, if any, investments in the Western countries, there was little or no risk that they would use corporate sovereignty against the richer nations. TAFTA/TTIP changes that situation dramatically. Both the US and EU have huge investments in each other: the European Commission estimates them as more than $1.75 trillion dollars in both directions -- a clear demonstration ISDS is not needed in order to encourage investors. If there is a corporate sovereignty chapter in TTIP, tens of thousands of companies on both sides of the Atlantic will gain the power to sue governments over policies they claim could impact their future profits adversely.

That is why critics have raised the issue now, and partly why the EU has proposed moving away from such a manifestly flawed approach. Given that it believes in "a strong national defense," it's curious that The Heritage Foundation is desperate to preserve a system that gives foreign investors such a powerful weapon to use against America.

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Filed Under: corporate sovereignty, eu, europe, european commission, isds
Companies: heritage foundation

European Commission Wants Collection And Retention Of Passenger Data For Everyone Flying In And Out Of Europe

from the open-breach-of-fundamental-rights dept

Another day, another shameless exploitation of the Charlie Hebdo attacks. We've just reported on an EU call for Internet companies to hand over their crypto keys; now the European Commission is trying to push through a requirement for wide-ranging information about everyone flying in and out of Europe to be collected and stored for years. As reported by the Guardian:

The European commission plan to be published on Wednesday would require 42 separate pieces of information on every passenger flying in and out of Europe, including their bank card details, home address and meal preferences such as halal, to be stored on a central database for up to five years for access by the police and security services.

The European Commission calls its plan (pdf) a "workable compromise", and goes on to list revisions that it claims address concerns of the European Parliament's Civil Liberties Committee, which rejected the whole idea of blanket retention of "Passenger Name Records" (PNR) back in 2013. Statewatch provides a summary of the main changes:

Changing the scope from "terrorism and serious crime" to "terrorism and serious transnational crime";

Reference to all the offences covered by the European Arrest Warrant is replaced by "a shorter list of offences that a relevant to transnational travel";

Reducing the retention period of the "full PNR" from 30 days to seven days, and changing the longer "depersonalised" retention period to four years in relation to "serious transnational crime" (it remains five years for terrorism);

"establishing stricter conditions for access to PNR data" including "the appointment of a Data Protection Officer within the national units responsible for the processing of PNR data";

"explicitly spelling out the rights of passengers to have access to their PNR data (retained by the PIU) and to request the modification or erasure of their data";

Whether or not these are enough, the Greens MEP Jan Philipp Albrecht, who is vice-chairman of the European Parliament's Civil Liberties Committee, points out a more fundamental problem with the proposal:

"The commission plans are an affront to the critics of the European parliament and the European court of justice who have said that data retention without any link to a certain risk or suspicion isn't proportionate.

"It is an open breach of fundamental rights to blanketly retain all passenger data," he added.

Albrecht is referring to the important judgment handed down by the EU's Court of Justice last year, which ruled blanket data retention was "invalid". The European Commission is acutely aware of this issue, and says right at the start of the leaked document:

The proposed compromise takes due account of the judgment of the Court of 8 April 2014 on the Data Retention Directive, as far as the judgment appears applicable to PNR.

However, it is by no means clear that the current proposal would in fact be regarded as "valid" by the court. Moreover, the Commission's document admits that it is anyway likely to meet resistance in the European Parliament:

In case the Commission would adopt its revised proposal without an accompanying Impact Assessment, the [European Parliament] or in any case some political groups would likely express their criticism, given the important implications derived on PNR from the [EU Court of Justice] ruling on [Data Retention Directive].

As that indicates, this move is just part of a larger argument within the European Union about how much surveillance of European citizens is appropriate, how long data about them should be retained and with what data protection safeguards. That, in its turn, feeds into even wider discussions with the US over the Safe Harbor agreement, NSA spying and the inclusion (or not) of a chapter on data flows within TAFTA/TTIP and TISA.

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Filed Under: data retention, european commission, passenger data, privacy

Lawsuit Filed Against European Commission In EU's Highest Court For Refusing To Allow Official TAFTA/TTIP Petition

from the almost-worthless dept

A couple of months ago, we reported on an extraordinary refusal by the European Commission to allow an official EU-wide petition, called a European Citizens' Initiative (ECI), to proceed. It was to have been on the topic of TAFTA/TTIP, and the Commission claimed it couldn't go ahead for the following reasons:

The negotiating mandate for TTIP is an internal preparatory act, and not a legal act affecting EU citizens. The act affects institutions only; not EU law directly. An ECI can only be directed at a concluded act, and not already at its preparatory stage.

An ECI proposing not to enforce a legal act is not possible. An ECI may be formulated only positively, i.e. work towards the enactment of a legal act.

That summary comes from a background document from 300 European civil society groups that have just filed a lawsuit against the European Commission in the EU's highest court, seeking to overturn this refusal. The document goes on to explain why the European Commission's reasoning is flawed (pdf):

Through its legal interpretation, the Commission is attempting to completely exclude its citizens from the development of international contracts: they should have no influence on their preparation. However, if international contracts are already in force, it is then almost impossible to challenge them -- it is practically impossible to terminate them.

The Commission wants to push through that an ECI can be used by citizens only to applaud decisions and schemes of EU bodies. Criticism or rejection should not be permitted, at least through official channels.

And what is more: From the justification of the rejection, it follows that an ECI on international contracts should not be possible, even if it were formulated positively ( "...the preparatory Council decisions authorising the opening of international negotiations or repealing such authorisation do not fall within the scope of the Regulation"). The citizens want to initiate a Europe-wide agreement on the determination of occupational safety standards? Impossible -- says the Commission.

If citizens are to be active through an ECI only if the EU institutions have already made all the important advance decisions, then the instrument of the European Citizens' Initiative is almost worthless.

Challenging the refusal therefore has another, more general, aim:

"We are not only appealing for the sake of the Stop TTIP ECI, but also for future European Citizens’ Initiatives. When it comes to the negotiation of international treaties, the European Commission wants to exclude citizens. While they are being negotiated, people are told not to interfere and when final contracts are put on the table, it’s too late. The Commission’s legal position effectively prevents any future ECIs on international agreements."

This really goes to the heart of the problem not just with TAFTA/TTIP, but also with TPP and the new TISA. The public is told that it cannot comment while the negotiations are being conducted, but that it should wait to see the final document. At that point, it is then told that there is no point in commenting, since nothing can be changed, and so the agreement must simply be accepted.

Fortunately, the groups behind the original ECI petition that was turned down have gone ahead and organized a petition quite separate from the ECI system. At the time of writing, it has attracted nearly 900,000 signatories from within the EU (the petition is limited to EU citizens, as the ECI would have been.) That makes it anti-democratic in the extreme for the European Commission to stymie an ECI on TAFTA/TTIP. The hope is that the legal action at the European Union's Court of Justice will compel the Commission to accept that fact and act on it.

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Filed Under: eu, european commission, petitions, public, tafta, transparency, ttip

Street Demonstrations In 21 European Countries Held To Protest Against TAFTA/TTIP; Another ACTA Revolt Brewing?

from the unprecedented-alliance dept

Last month, the European Commission refused to accept a request to allow an official EU-wide petition called a European Citizens' Initiative (ECI) to take place. This was a curiously maladroit move by the Commission: it would have been easy to allow the petition against TAFTA/TTIP and CETA to proceed, thank the organizers once it was completed, file it away somewhere and then ignore it. Instead, by refusing to allow it to take place, the European Commission has highlighted in a dramatic manner the deeply undemocratic way in which so-called trade agreements are conducted.

Moreover, those making the request have simply gone ahead anyway, launching what they call the "Self-organised European Citizens' initiative Against TTIP and CETA". Even though this was only launched last week, it has already collected over 600,000 signatures from European citizens at the time of writing, and there is every indication that it will go well past the nominal one million signatures that the ECI would have required. The European Commission's refusal to allow the official petition was doubly stupid, since it came shortly before a Europe-wide day of action against TAFTA/TTIP that took place last Saturday, and doubtless encouraged people to take to the streets in order to make their views felt:

On October 11, 2014, tens of thousands of people and hundreds of organisations in 21 countries are organising actions to reclaim democracy, and stop the negotiations on three far-reaching trade agreements: the EU-US deal (TTIP), the EU-Canada deal (CETA) and the trade in services deal (TiSA).

This decentralised European Day of Action -- consisting of over 300 actions, marches, meetings and flash mobs -- is being organised by an unprecedented alliance of civil society groups and individuals, social movements, trade unions, rights defenders, farmers and grassroots activist groups.

Reporting on the event, Euractiv.com wrote:

Some 400 activist groups marched all over Europe on Saturday (11 October) in protest against the Transatlantic Trade and Investment Partnership (TTIP), as the EU-US trade deal crystallises opposition to a wide variety of issues -- from shale gas to corporate finance.

That last point is important. Euractiv.com goes on to explain:

The opposition to TTIP has many faces however, and seems to embody a wide variety of concerns. In France, many small demonstrations focused on opposition to shale gas, especially in the South of France, while in Berlin protesters were worried that TTIP would weaken the powers of the German regions, or Länders.

Potentially, that could make the European opposition to TAFTA/TTIP even broader-based than it was to ACTA, where people were largely concerned about a single issue -- digital rights. And just as the ACTA demonstrations started off small scale, but grew to hundreds of thousands of people before ACTA was rejected by the European Parliament, so the anti-TTIP movement in Europe could easily swell larger still. Especially if the European Commission continues to conduct the negotiations in secret and without any input from its citizens.

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Filed Under: acta, ceta, demonstrations, eu, europe, european commission, public participation, tafta, transparency, ttip

Does The European Commission Really Think The Internet Is A 'Value Tree' That Requires A 'Transmission Belt Of Euros'?

from the forward-to-the-past dept

Currently, the European Commission is conducting a public consultation on the review of the EU copyright rules. Unusually, the deadline for this was extended from the original 5 February to 5 March so you still have time to make a submission if you wish -- it's open to everyone:

All stakeholders are welcome to contribute to this consultation. Contributions are particularly sought from consumers, users, authors, performers, publishers, producers, broadcasters, intermediaries, distributors and other service providers, Collective Management Organisations, public authorities and Member States.

Optimists might see the extra time as a sign that the Commission is genuinely interested in gathering as wide a range of public views on this subject as possible. But a post from Paul Keller raises the possibility that this is just window-dressing, and that it has already made up its mind about what it will do on copyright regardless of what the public thinks. As he explains:

In recent weeks officials at the European Commission's Internal Market and Services Directorate General (which is in charge of copyright policy) have been passing around this diagram of what they call the 'Internet Ecosystem value tree':

Here's Keller's summary of what that shows:

The Internet Ecosystem value tree implies that the primary purpose of the Internet -- like that of all distribution channels that came before it -- is to channel content from producers (the Authors/Artists/Audiovisual and Record Producers/Newspapers and Books Publishers/Broadcasters/Other Creative Industries in the schema above) to a separate group of people called Consumers. In exchange for this the Consumers will pay Distributors and Internet Platforms money for their services, which is then augmented with advertising income. Distributors and Internet Platforms use parts of their income to pay for the content.

What the Commission implies here is that if this transmission belt of Euros does not work, then the entire Internet ecosystem will die off and as a result any public policy aimed at protecting the digital environment must ensure that content producers are paid.

Of course, that's a frighteningly retrogressive vision of the Internet that seems to regard it as simply the latest incarnation of television. As Keller points out:

Projects like Wikipedia, uses such as text and data mining, online access to cultural heritage and educational resources, and transformative use of the Internet do not follow the same logic as the traditional content industry value chains. Here limited user rights and long terms of protection become problematic and increased enforcement translates into chilling effects.

At the same time all of these types of uses are exactly what makes the Internet special and drives its potential to accelerate innovation and to democratize access to knowledge, tools and culture. The Internet is the first mass medium that is simultaneously enabling market driven uses, uses that are driven by public policy objectives (such as education or access to culture), and uses driven by people's desire to create, collaborate and contribute to the commons.

The rest of his post makes similarly insightful points, and is well-worth reading. If the European Commission's Internal Market and Services Directorate General really is thinking of the Internet as a "value tree" that requires a "transmission belt of Euros", let's just hope someone there reads Keller's post and realizes what a terrible mistake that would be.

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Filed Under: copyright, european commission, european union, internet

In Response To Growing Protests, EU Pulls Corporate Sovereignty Chapter From TAFTA/TTIP To Allow For Public Consultation

from the more-of-this,-please dept

Here on Techdirt, we've been writing about the dangers of corporate sovereignty for a while. In recent months, more and more people and organizations have pointed out that the plan to include an investor-state dispute settlement (ISDS) in the TAFTA/TTIP agreement currently being negotiated is fraught with dangers -- and also completely unnecessary given the fair and efficient legal systems that exist on both sides of the Atlantic. It seems that this chorus of disapproval has finally been noticed, in Brussels at least:

EU Trade Commissioner Karel De Gucht today announced his decision to consult the public on the investment provisions of a future EU-US trade deal, known as the Transatlantic Trade and Investment Partnership (TTIP). The decision follows unprecedented public interest in the talks. It also reflects the Commissioner's determination to secure the right balance between protecting European investment interests and upholding governments' right to regulate in the public interest. In early March, he will publish a proposed EU text for the investment part of the talks which will include sections on investment protection and on investor-to-state dispute settlement, or ISDS. This draft text will be accompanied by clear explanations for the non-expert. People across the EU will then have three months to comment.

That's a hugely significant admission that the European Commission's attempt simply to push ISDS through without explanation or consultation was a major tactical error. By failing to address the manifest problems with investor-state disputes, the European Commission allowed the overall sentiment towards TAFTA/TTIP to become increasingly negative. Clearly, what De Gucht hopes to achieve with this three-month pause is to convince people that ISDS is not a threat to national sovereignty, and thus to salvage the agreement as a whole.

He may have problems trying to do that. The European Commission press release quoted above includes a section with background information about corporate sovereignty. It's heavily based on an earlier Commission "fact sheet" entitled, "Investment Protection and Investor-to-State Dispute Settlement in EU agreements" (pdf). Elsewhere, I have explained why the arguments offered are almost entirely wrong or misleading. So it's not at all clear how the European Commission will manage to win people over to an idea that is entirely for the benefit of corporates, and offers nothing but disadvantages for the general public.

Still, De Gucht's move to open up at least this area of TAFTA/TTIP for public discussion is to be welcomed, even if it was made rather unwillingly. Now that the European Commission has finally admitted that it is indeed possible to release its negotiating text in order to allow a public debate, we must have similar transparency for the rest of the agreement.

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Filed Under: corporate sovereignty, european commission, isds, karel de gucht, tafta, ttip

Two Pharma Companies Fined Over 'Pay For Delay'; Novartis Unrepentant About Suffering Caused

from the profits-before-patients dept

Back in April of this year, we wrote about a spate of investigations around the world into "pay for delay" deals, whereby a big pharma company essentially buys off manufacturers of generics so that the former can continue to enjoy monopoly pricing long after its patents have expired. One of those involved the European Union, and the two pharma companies Johnson & Johnson and Novartis. As PharmaTimes reports, fines are being imposed on them for their actions:

The European Commission has fined Johnson & Johnson (J&J) just under 10.8 million euros and Novartis 5.49 million euros, after finding that their subsidiaries in the Netherlands had agreed an anticompetitive deal aimed at delaying the market entry there of a generic version of the painkiller Duragesic (fentanyl), thus breaching European Union (EU) antitrust rules.

Of course, such sums are little more than a wrist slap for pharma giants, but it's nonetheless good to see the European Commission making clear that this anti-competitive behavior is not acceptable in the EU:

The payment by J&J to Novartis "shockingly deprived patients in the Netherlands, including people suffering from cancer, from access to a cheaper version of this medicine," said Joaquin Almunia, the European Commission vice president in charge of competitive policy.

Despite that fact, with the likelihood that cancer patients were probably in more pain than was necessary, some remain in denial:

In a statement, Novartis and [its subsidiary] Sandoz say they "reject the Commission's allegation that the 2005 co-promotion agreement was intended to deprive patients in the Netherlands of cheaper medicines."

Whether or not that was the "intention", it was the inevitable effect, and quibbling over the difference shows the moral squalor of companies like Novartis that regard additional suffering of cancer patients as some kind collateral damage that can be ignored in the cause of pumping up their profits.

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Filed Under: european commission, fines, netherlands, pay for delay, pharmaceuticals
Companies: johnson and johnson, novartis