If you cast your mind back to the heady days of summer, when we were all worried about what ACTA might do, one of the problems was with Article 27, whose third paragraph reads:
Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party's law, preserving fundamental principles such as freedom of expression, fair process, and privacy.
As we know, that last clause was simply a fig leaf - "fair process" does not exist as a well-defined concept, so its inclusion here is a clear demonstration of the negotiators' bad faith: they were trying to give the dishonest impression that they were looking after people's rights, when that was not the case.
The first part is deeply troubling because it introduces the idea of "cooperative efforts" between the copyright industry on the one hand, and Internet service providers and Web sites on the other. It's a clear attempt to circumvent the law by introducing extrajudicial punishments that are not subject to the usual checks and balances.
The main objective of the project is to develop a non-legislative ‘framework' that consists of general principles and best practices. The general principles will be developed through a bottom up process in which the private sector will take the lead. Through a series of workshops and conferences, the private and public sector will define their problems and try to draw up principles. These principles can be used as a guideline or gentlemen's agreement, and can be adopted by many partners. They will describe responsibilities and concrete steps public and private partners can take to counter the illegal use of the internet.
Remarkably, it turns out that far from hiding this move away from the rule of law to such back-room "gentlemen's agreements", the European Commission is trying to formalise them as something it has dubbed "open voluntarism". There's even a consultation on the matter (and that's good):
DG Communications Networks, Content and Technology is launching a public consultation on a "Code for Effective Open Voluntarism: Good design principles for self- and co-regulation and other multistakeholder actions"
In the CSR Communication COM (2011)681, about "A renewed EU strategy 2011-14 for Corporate Social Responsibility," under the fifth action of the action plan, the Commission has undertaken to seek to codify good practice in various voluntary, self- and co-regulation processes in order to improve the framework for achieving EU policy objectives.
The prime goal of action 5 is to encapsulate, in a very short text, the core propositions that frame effective voluntary multistakeholder action.
As explained in the invitation letter, this consultation has three goals:
1. Gather comments on the draft Code
2. Develop a cross-EU and multi-sectoral Network of Excellence, including the sharing of useful reference material and best practices.
3. Gather knowledge, ideas and opinions about how to ensure that voluntarism receives its appropriate share of attention in the policy-making toolbox.
Personally, I find this a very worrying development, but EDRI – the organisation that leaked the Clean IT document – takes a more sanguine view:
We have been (sometimes very!) critical of the Commission's approach to self-regulation – most particularly when it is not self-regulation at all but privatised law enforcement, as we see in the now infamous Clean IT project and as was also proposed in ACTA. If the Commission were currently following the draft code, many of the excesses that we see today would not be happening. For example, the chaotic and expensive two-year "brainstorming" of Clean IT would never have happened because the code stipulates the establishment, from the outset, of "clear and unambiguous" objectives, "starting from a well-defined baseline." Indeed, the confusion regarding the specific aims of the project is one of the main reasons that EDRi felt that it was inappropriate to participate in that group.
However, it does think that the draft proposals could be improved:
For example, contrary to the process followed by Clean IT, there should be an "up front" understanding that any outcome cannot legally result in restrictions of fundamental rights.
That seems indispensable, since otherwise such extrajudicial moves could represent huge setbacks for such rights.
Secondly, it is very important that any involvement from public authorities in self-regulatory measures result in those authorities agreeing to take a formal position to either endorse or reject the outcome of the project. The alternative is power without responsibility – a public authority can convene industry discussions, push for a particular outcome and then claim that the entire process was "industry's idea."
This is a real problem for this whole concept of "voluntarism": it's a perfect way for governments to pretend such projects are just following the will of the people – well, of industry, at least – and that they really had nothing to do with these terrible ideas. As EDRI points out, governments must take responsibility for their input.
The third major point of our response refers to the actions that should be taken if a stakeholder group resigns from a multi-stakeholder process. In the Commission's draft code, representativeness is given a high degree of priority, but the guarantees to ensure this is actually respected are somewhat weak. For example, there is no clarity as to what should be done if a stakeholder group loses faith in the process and resigns. Our suggestion is that the group should have the right to produce a statement of objections and for this to be appended to the final, published agreement. We also suggest that the resignation of key stakeholder groups or an agreed proportion of participants would automatically trigger the ending of the project. In the same vein, we propose that a level of non-compliance should be agreed which, if attained, would also lead to the ending of the project.
Those are more detailed issues about how such "open voluntarism" works in practice, but they seem sensible to me. If you feel the same, or indeed have other views about this push for "gentlemen's agreements", I urge you to participate in the current consultation.
It ends today (sorry....), but luckily the questionnaire (which has to be filled in online, but can be downloaded first in order to read the questions and prepare answers [.pdf]) is extremely short, and won't take long to fill in. It's an important issue, even though it's managed to stay under the radar for most of us (myself included) until now.
Update: I omitted to link to EDRI's detailed comments on the draft Code [.pdf]. As you will see there, EDRI has some very sensible suggestions for ameliorating the text, and I have decided that it's probably best simply to endorse these in my submission. If you have a better grasp of this area than I do, you may wish to make your own changes to the Code, and to submit those as an attachment.