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Glyn Moody

Glyn Moody's look at all levels of the enterprise open source stack. The blog will look at the organisations that are embracing open source, old and new alike (start-ups welcome), and the communities of users and developers that have formed around them (or not, as the case may be).

ACTA Update II

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Although ACTA is billed as a global treaty, there are only two participants that really matter: the US and the European Union. If either of those dropped out, it would be completely ineffectual.

I think the US is unlikely to do that, for two reasons. First, ACTA is essentially the US copyright industries' shopping list of measures that they would like to see forced on the rest of the world: it gives huge benefits to Hollywood and the recording industry, but little to anyone else.

The second reason is that the US government is taking the line that ACTA is not a treaty, but an "executive agreement", which basically means that it can be pushed through without asking anyone's permission – not even the US Congress or Senate (which is pretty much what happened in the UK, of course.)

That implies attention is really focussed on what happens in Europe. As I mentioned in the first update, the European Parliament has the opportunity to kill ACTA completely; whether it does that will depend critically on how much momentum the anti-ACTA movement gains in Europe. So I thought I would devote this second update to exploring some of the interesting things that have already happened in the European space.

By far the most dramatic – and arguably important in terms of its impact – was the statement from the French MEP Kader Arif, who was the "rapporteur" for ACTA, tasked with piloting it through the final stages of ratification. This is what he published on his official web site:

I condemn the whole process which led to the signature of this agreement : no consultation of the civil society, lack of transparency since the beginning of negotiations, repeated delays of the signature of the text without any explanation given, reject of Parliament's recommendations as given in several resolutions of our assembly.

As rapporteur on this text, I also experienced never-before-seen maneuvers from the right wing of this Parliament to impose a rushed calendar before public opinion could be alerted, thus depriving the Parliament of its right to expression and of the tools at its disposal to convey citizens' legitimate demands.

Still, everyone knows that there are problematic aspects in the ACTA agreement, whether it on its impact on civil liberties, the responsibility put upon internet providers, the consequences on the production of generic medicines or the poor protection of geographical indicators.

This agreement can have major consequences on citizen's lives, however everything is made to prevent the European Parliament from having its say in this matter. That is why today, as I release this report for which I was in charge, I want to send a strong signal and alert the public opinion about this unacceptable situation. I will not take part in this masquerade.

That's pretty extraordinary, coming from someone who had a unique insight into what ACTA really means for citizens. In an interview in the Guardian he explained one particular issue that has not been highlighted much yet:

"The problem with Acta is that, by focusing on the fight against violation of intellectual property rights in general, it treats a generic drug just as a counterfeited drug. This means the patent holder can stop the shipping of the drugs to a developing country, seize the cargo and even order the destruction of the drugs as a preventive measure."

As a result generic drugs – not counterfeits, but low-cost versions for use in poorer countries that afford to pay Western prices for vital medicine – could be impounded and destroyed as they pass through an ACTA signatory if manufacturers of the more expensive commercial varieties complain. Since many of these drugs are literally life-saving, that means that people in developing countries are likely to die as a direct result of ACTA's over-broad reach.

That's on top of the better-know problems with ACTA, which Arif also touched on in the Guardian interview:

Internet freedoms could also be under threat if Acta is ratified in its present form, he says. "The chapter on internet is particularly worrying as some experts consider it reintroduces the concept of liability of internet providers, which is clearly excluded in the European legislation." That could make ISPs, who provide internet access, liable for users' illicit file-sharing.

Arif also expressed concern that there could be more intrusive checks at borders to fight counterfeiting.

"I see a great risk concerning checks at borders, and the agreement foresees criminal sanctions against people using counterfeited products as a commercial activity," he said.

"This is relevant for the trade of fake shoes or bags for example, but what about data downloaded from the internet? If a customs officer considers that you may set up a commercial activity just by having one movie or one song on your computer, which is true in theory, you could face criminal sanctions.

Nor was Kadif the only European involved in the ACTA process who now regrets being involved. Here's an astonishing post from the Slovenian Ambassador to Japan, one of the people who signed ACTA last week:

I signed ACTA out of civic carelessness, because I did not pay enough attention. Quite simply, I did not clearly connect the agreement I had been instructed to sign with the agreement that, according to my own civic conviction, limits and withholds the freedom of engagement on the largest and most significant network in human history, and thus limits particularly the future of our children.

Alongside these brave acts – it's hard to see the ambassador's career flourishing much after this – a number of other politicians have started to voice their doubts. For example, in Bulgaria, MEPs from the "Blue Coalition" expressed their opposition, as did another MEP from the left.

One MEP, Marietje Schaake from the Netherlands, has gone even further, and put together an excellent briefing document about ACTA (on Reddit, too – how savvy is that?) Crucially, she explains what happens next:

The European Parliament has the decisive voice on ACTA and the INTA committee has the lead. Other committees will be developing their opinions on ACTA in the coming months. You can find some more information about the procedures and relevant committees on this official EP website

The 1st exchange of views on ACTA in the INTA committee is scheduled for either the 29th of February or the 1st of March. The committee will then most likely vote on the ratification of the treaty in April or May.

After that, the most important vote will be during the Strasbourg plenary session on June 11th to 14th, where all MEPs will be able to vote on ACTA. (Please note that these dates may change). If the majority of MEPs vote in favour of ratification ACTA will be ratified by the EU.

She also provides the key dates:

- 29 February/1 March: Discussion in international trade committee,
- April or May: Vote in international trade committee,
- 12, 13 or 14 June: Final vote in plenary (most important vote).

Schaake is on Twitter as @MarietjeD66, and is well-worth following if you want to keep on top of what is happening on this front (although be warned that some of her tweets are in Dutch...)

Finally, I thought I'd point people to an example of how the supporters of ACTA are trying to convince "ordinary" people that the growing number of citizen protests around Europe are all much ado about nothing.

It's an article entitled "ACTA is a victory for Denmark" by Pia Olsen-Dyhr, the Danish Minister for Trade and Investment – in English, too, so you can read the interesting angle the minister chooses to take. Since it addresses both that choice of perspective and wider problems with ACTA, I include here my comment to that post, now up on the Danish site.

The minister highlights problems with counterfeit goods. These undoubtedly exist, and are especially worrying for things like medicines or spare aircraft parts. But this does not address the real problem with ACTA: that it seeks to apply the same harsh legislation aimed at curbing dangerous counterfeit goods to the simplest digital copyright infringement.

For example, Article 9 of ACTA states: "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."

For physical counterfeits, that might make sense, but it doesn't for digital copies. What is the lost profit from sharing one file? One Euro – the cost of the copy – or the millions that the copyright industries claim has been lost as a result of the multiple copies around the Net?

Not only that, but Section 4 on Criminal Enforcement uses a definition of "piracy on a commercial scale" that includes "indirect economic or commercial advantage." Obviously, everyone that shares digital files without paying derives indirect economic advantage; and because there is no minimum level of infringement specified in ACTA, that means that sharing a single MP3 could in principle lead to criminal charges and imprisonment.

Moreover, another clause stipulates that signatories "shall ensure that criminal liability for aiding and abetting is available under its law." Even linking to a site that holds unauthorised copies of copyright materials is clearly aiding someone download them, and therefore in principle, because of the very broad definitions employed by ACTA, anyone on Facebook or Twitter who points to a video clip that has not been authorised, and which has some advertising around it (thus making it "commercial") could be subject to criminal charges and imprisonment.

These are just some of the examples of the way in which the inclusion of digital infringement alongside counterfeits has led to a situation where ordinary users of the Internet may find themselves threatened with criminal proceedings and imprisonment.

Other major issues include the fact that ACTA requires authorities to "order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement." That is, guilty upon accusation, and no right to privacy.

Since ACTA has been drawn up and agreed behind closed doors, there is now no way to amend these problematic passages. In order to protect European citizens from the disproportionate punishments that ACTA provides for, to preserve their privacy and the assumption of innocence before being proved guilty, the only solution is for the European Parliament to reject ACTA when it is presented for ratification, and for new treaties to be drawn up that deal with counterfeits and digital infringement separately.

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

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