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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).

Stopping ACTA: JURI and LIBE Committees

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Yesterday I posted my submission to the ITRE committee; today I include my email to the JURI (legal affairs) and LIBE (civial liberties) committees, both of which are voting on what their recommendations should be on May 31. I have lumped them together since both are largely concerned with legal issues. Here's how JURI describes itself:

The Committee, otherwise known by its French acronym "JURI", is closely involved in helping citizens in their daily lives across the Union, through its responsibility for legislation in the field of civil law and private international law. As the Committee responsible for company law, it is also at the forefront of making life easier for businesses trading in the internal market. Competitiveness is also at the heart of our preoccupations, in particular through the big debate currently taking place on the protection of intellectual and industrial property.

And here is LIBE:

The Committee on Civil Liberties, Justice and Home Affairs (LIBE) is in charge of most of the legislation and democratic oversight for policies linked to the transformation of the European Union in the area of freedom, security and justice (AFSJ) (art. 3 TEU). These policies are intertwined with the implementation of the Charter of Fundamental Rights in EU territory and with the strengthening of European Citizenship.

JURI's UK members are as follows:

arlene.mccarthy@europarl.europa.eu

gerard.batten@europarl.europa.eu

sharon.bowles@europarl.europa.eu

mary.honeyball@europarl.europa.eu

sajjad.karim@europarl.europa.eu

rebecca.taylor@europarl.europa.eu

LIBE's UK members are:

anthea.mcintyre@europarl.europa.eu

gerard.batten@europarl.europa.eu

andrew.brons@europarl.europa.eu

michael.cashman@europarl.europa.eu

sajjad.karim@europarl.europa.eu

jean.lambert@europarl.europa.eu

sarah.ludford@europarl.europa.eu

claude.moraes@europarl.europa.eu

graham.watson@europarl.europa.eu

glenis.willmott@europarl.europa.eu

(note that there is some overlap here.)

And here's what I've sent them:

I am writing to you in connection with the imminent submission of your committee's opinion on ACTA. As you know, this has become an extremely contentious issue, with much misinformation flying around. Since I appreciate that time is short, and you will be very busy on this topic, I just wanted to point out four basic reasons why I feel ACTA is problematic, and should be rejected.

ACTA deliberately avoids protecting civil liberties

As the important court case in the European Court of Justice recently established (http://curia.europa.eu/juris/document/document.jsf?text=&docid=119512&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=291042):

a fair balance [must] be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other

The problem is that ACTA is completely one-sided on this question: it provides no safeguards for civil liberties. Disturbingly, it tries to hide this fact in a particularly troubling way. Here's what Amnesty International wrote on the subject (https://www.amnesty.org/en/news/eu-urged-reject-international-anti-counterfeiting-pact-2012-02-10):

Amnesty International is also gravely concerned about the ACTA's vague and meaningless safeguards. Instead of using well-defined and accepted terminology, the text refers to concepts such as "fundamental principles" and even invents a concept of "fair process", which currently has no definition in international law.

"Worryingly, ACTA's text does not even contain references to safeguards like ‘fundamental rights', ‘fair use', or ‘due process', which are universally understood and clearly defined in international law," said Widney Brown.

That is, ACTA deliberately uses language that literally has no meaning in the context of an international treaty: "fundamental principles" and "fair process" simply do not exist, and are therefore worthless as safeguards for civil liberty. What's worrying is that ACTA negotiators would have known this – this was a deliberate attempt to give the appearance of balance and proportionality while ensuring that the resulting wording of the treaty would in practice be entirely one-side in favour of enforcement. That is, this is not just bad drafting, but drafting in bad faith, with a deliberate intention to deceive.

ACTA has dangerously vague wording that could criminalise trivial online activities

Throughout the treaty, measures are couched in very vague terms. It means that the European Parliament is being asked to ratify something whose real-world effects are unknown.

For example, Article 23 of ACTA is as follows:

Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale. For the purposes of this Section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.

The definition of "commercial scale" is crucially important, because it is used throughout ACTA, and triggers the application of criminal sanctions (which would include, for example, extradition to the US – as you know, a particularly hot topic in the UK at the moment.)

The section above says "acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage." But no minimum level is set here or elsewhere – something that would have been easy to do. Instead, we have "at least those carried out as commercial activities for direct or indirect economic or commercial advantage".

Because of the imprecision of this wording, that would include a Web site where Google ads were being run. Now imagine that someone posted a link on that site to an unauthorised copy of material elsewhere on the Net, and that this causes people to visit that page with the link, and sometimes to click on the Google Ads. The posting of the link would then be a commercial activity for indirect economic gain, and the person running the site would fall foul of laws implementing ACTA.

The vague, over-broad wording of ACTA means that it is likely to applied in a completely disproportionate fashion. The fact that the ACTA negotiators chose not to avoid that problem by specifying a minimum level below which it did not apply suggests that they were happy with this extreme interpretation.

ACTA is trying to address two completely different problems with a single approach

As its name suggests, the Anti-Counterfeiting Trade Agreement began life as an effort to combat counterfeit goods. Nobody has any objections to moves aimed at curbing dangerous fake goods or counterfeit medicines – I certainly don't. But alongside that, a section was added that attempts to tackle unauthorised sharing of digital goods online. These are completely different from fake medicines: they are certainly not dangerous, and those involved are often general members of the public, rather than organised criminals. And yet ACTA's unitary approach treats citizens that share digital files as if they were organised criminals selling fake drugs. What is needed are two separate treaties, addressing the very different issues with different solutions. ACTA's one-size-fits-all is simply the worst of all worlds.

ACTA won't – and cannot – achieve what it sets out to do

The European Commission has emphasised the damage that counterfeit goods are doing to the European economy, and the threat they represent to jobs. Here, for example, is what it said in its latest ACTA press release (http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/354&format=HTML&aged=0&language=EN&guiLanguage=en):

ACTA is an international trade agreement that will help countries work together to tackle more effectively large-scale Intellectual Property Rights violations. Citizens will benefit from ACTA because it will help protect Europe's raw material – innovations and ideas

….

As Europe is losing billions of Euros annually through counterfeit goods flooding our markets, protecting Intellectual Property Rights means protecting jobs in the EU. It also means consumer safety and secure products.
The EU's national customs authorities have registered that counterfeit goods entering the EU have tripled between 2005 and 2010.
Statistics published by the European Commission in July 2011 show a tremendous upward trend in the number of shipments suspected of violating IPR. Customs in 2010 registered around 80,000 cases, a figure that has almost doubled since 2009. More than 103 million fake products were detained at the EU external border

But the Commission's own statistics on counterfeiting, referred to above, have the following to say (http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/506&format=HTML&aged=0&language=en&guiLanguage=en):

In 2010, 85% of the total amount of articles infringing IPR came from China. This represents an important increase compared to 2009 (64%). Other countries were the main source of provenance for different product categories, notably Turkey for foodstuff, Thailand for non-alcoholic beverages, Hong Kong for memory cards and India for medicines.

None of those countries is a signatory to ACTA. This means that even if ratified, ACTA will have zero effect on those countries' output of counterfeits. ACTA will only affect signatories, and the only signatory that is mentioned in the Commission's own list of top counterfeits is Greece, which supplies 0.91% of counterfeit goods in the EU. In other words, 99.09% of counterfeit goods will be unaffected if ACTA goes into effect. ACTA will do nothing to protect European citizens against counterfeits, which must be tackled with the laws we already have. We simply don't need ACTA.

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