For quite some time, we've talked about how the entertainment industry has used international agreements as a way to force their agenda through various governments. There's a great book, Information Feudalism: Who Owns the Knowledge Economy?, which details some of the history of how the entertainment industry has often driven international agreements, and then used those international agreements -- which they had a hand in writing -- to then demand changes to various laws to "meet our international obligations." Just law week, I saw Bruce Lehman (at Santa Clara University's DMCA summit), the architect of the DMCA, flat out admit that he intentionally went to WIPO to get the 1996 WIPO Copyright Treaty passed as an "end run around Congress," since Congress wasn't interested in passing the DMCA.

Just last week, we also highlighted how existing international free trade agreements make it difficult for Congress to fix something as simple as making it legal to unlock your mobile phones, even if the White House has come out in favor of it. I'll have more on this little horror story shortly, but these kinds of examples should have us tremendously worried about various international agreements, from ACTA to TPP to the upcoming TAFTA covering Europe and the US.

Given those concerns, the folks at Open Media have set up a day of discussion about how the public can stop international agreements from restricting internet freedom.

So we want your input: What do you think is the best way to stop these threats to Internet freedom? How can we best reach and engage more people in the battle to stop Big Media lobbyists and bureaucrats from censoring expression online?

They're hosting a Reddit AMA to discuss this (I'm participating for part of the day), along with asking people to discuss anywhere else they would like as well: Facebook, Twitter, Google Plus, or right here in the comments. The entertainment industry has had more or less free rein in helping to craft international agreements that pressure governments into passing laws in their favor for decades. It's time we took that out of the secret back rooms, and let the internet-using public have its say in the matter.

Last month, through all of the secrecy shrouding the Canada-EU Trade Agreement (CETA), it was revealed that the treaty called for the same criminal copyright sanctions that European citizens widely rejected when those same sanctions showed up in ACTA. This was just as people feared, and those who noticed were furious that the EU would try to quietly undo the public's ACTA victory so quickly and brazenly. Of course, the reaction to CETA is so far nowhere near the critical mass that led to the ACTA protests — but it looks like the negotiators are afraid of recent history repeating, and may just have gotten the message that they can't do whatever they want behind the public's back. TechCentral reports (found via The 1709 Blog) that more recent CETA documents reveal a weakening of the ACTA-like criminal provisions. There has even been some stance-softening from pro-ACTA powerhouse Karel De Gucht:

...according to documents from the Cyprus Presidency of the EU seen by IDG News Service, the CETA text has been greatly watered down in order to avoid a similar outcome [to ACTA]. The intellectual property protection chapter is now understood to say that countries "may" provide for criminal procedures and penalties.

Even European Trade Commissioner Karel De Gucht, who pushed hard for the ACTA agreement, admits that changes must be made. "Since the negative vote of the European Parliament on ACTA, we have been changing the language obviously," he said in an interview with Vieuws.eu. "We should have no illusions, there are still a number of difficult issues to tackle."

Interestingly, though, there is still a strong push for CETA to include criminal sanctions for video recording in movie theaters... championed by Canadian negotiators. We've had a specific criminal law against recording a movie without permission of the theater owner in Canada since 2007 — a law that, like many of Canada's anti-piracy efforts, was primarily the result of U.S lobbying. This is typical of U.S. tactics when it comes to intellectual property law: push your closest friends and neighbors to adopt the strictest laws possible, then put pressure on international negotiations to export those laws around the globe and enshrine them as the norm. Thankfully, these latest leaked negotiation documents suggest that the EU is against Canada's proposal.

There were plenty of rumors (and leaks) earlier this year about how, even after European protests effectively killed ACTA in the EU, it was clear that some of the worst, most outrageous parts of ACTA had been written into CETA, a similar agreement between Canada and Europe. EU officials claimed they were removing the most controversial provisions -- but now it's been confirmed that the ridiculously misguided criminal sanctions... had magically found their way into CETA. Given the public's response to ACTA, EU Commission officials either think the public is stupid... or just not paying attention.

The current attitude of the EU negotiators on CETA is an alarming repetition of the blatant denial of democracy of the ACTA negotiations. Despite calls from citizens and representatives, CETA remains confidential, both in the EU and in Canada. In this context of non-transparency, Philipp Dupuis, the European Commission negotiator, confirmed at a workshop held on October 10th 2012 that ACTA-like criminal sanctions were still in the CETA draft.

As Jeremie Zimmermann points out in the link above, this whole process of sneaking through protectionist IP policies in supposed "free trade" agreements needs to stop:

“The only hard evidence on which we can base our analysis suggests the worst: once again, the European Commission and the EU Member States governments are trying to impose repressive measures against cultural practices online. Broad criminal sanctions do not belong in a trade agreement. If they appear in the final CETA text, the agreement will lose all legitimacy and will have to be frontally opposed, like ACTA. This trend of sneaking repressive measures through negotiated trade agreements must stop.”

It needs to stop, but people don't realize how entrenched that process is, which is a big part of the problem.

Though the specific process differs from country to country, international agreements are generally negotiated and signed at the highest levels of government, with input from everyone else filtering up (in theory) through the hierarchy—at least until you get something like ACTA, where the public rises up en masse and essentially overrides the whole system. One thing that you don't often see is municipal governments standing up to take a direct role in international negotiations—but that's exactly what's happening now in Canada, where cities are seeking to avoid an ACTA-like situation by asking to opt out of the Canada-EU Trade Agreement (CETA) at the municipal level.

The effort is being led by The Council of Canadians, a social justice group which is working to persuade cities, towns, and municipal authorities all over Canada to request exemption from CETA. Their core concern is about the agreement's procurement chapter, which sets down rules about how governments and other public bodies can spend money on goods and services, and which they fear will unduly restrict municipalities:

For example, new rules in CETA on how public bodies spend money would:

• Prohibit municipalities from putting buy local or buy Canadian preferences on contracts, or requiring that bidders use some portion of local or Canadian goods, services or labour. This would end the ability of municipalities to use procurement as a local economic or social development tool.
• Prohibit municipalities from using public spending to create or support a market for innovative goods and services, including green technologies, if the effect would favour Canadian producers or attract investment to Canada.
• Prohibit municipalities from spending public money in ways that support sustainability, for example through buy local food policies like the one Toronto passed to reduce emissions from food miles.

As long as municipal governments are part of the CETA deal, these prohibitions will apply to local purchases. We need to make sure cities, towns, school boards and hospitals are not bound by these unnecessary rules.

So far, over 30 local governments representing over 5.5 million people have joined the exemption campaign and another 30 to 40 municipal councils, school boards or associations have asked for more information and more input in the negotiations. Unfortunately, as is common with these situations, such concerns have been largely brushed off in a weak damage control effort by the federal government. Assurances from the Candian Foreign Affairs and International Trade Ministry on the Myths and Realities page are reminiscent of the EU's ACTA Facts, and the Council of Canadians have a page that debunks them. International trade strategist Peter Clark laughs off the fears Canadians have of corporate control of their water services.

CETA is not about diverting Canada’s lakes and rivers – which would not do Europeans much good in any event because we have no common borders... There is no requirement to privatize services which do not compete with private entities and do not operate on a commercial basis.

There are good reasons for the municipalities' concern about the investors' clauses, but Clark just tells them not to worry their pretty little heads about it and run along. Stonewalling and secrecy are not the way to build confidence in the benefits of CETA.

Earlier this week, we wrote about the revelation (via a leaked text) that the Canada-EU Trade Agreement, which is nearing completion, contains provisions in the IP chapter that are extremely similar to ACTA. It's a pretty clear attempt to reboot the ACTA process via a back door, and Michael Geist's coverage drew a lot of attention to the issue in Europe. Now, it looks like damage control is already underway: Geist reports that the European Commission has made a weak attempt to assuage concerns by announcing that two of the ACTA-like provisions in CETA have been dropped. Unfortunately, those provisions only represent a small fraction of CETA's similarities to ACTA:

The European Commission, which initially indicated that it would not respond to the posting of the leaked CETA IP chapter, has now responded by saying that the two ACTA provisions involving Internet providers have been dropped from CETA. When asked whether those were the only changes, EU Trade spokesperson John Clancy said there may be other changes but that this was the biggest one.

While the removal of the Internet provider provisions is a good step, the European Parliament's overwhelming rejection of ACTA was the result of far more than just the Internet provider provisions. Indeed, there has been concern about digital locks, damages, criminal provisions, and border measures. All of those provisions also appeared in the February 2012 CETA draft and Clancy's response suggest that most, if not all, remain there.

So... some of the bad stuff has been removed from the leaked draft that we weren't supposed to see in the first place. Also there may be other changes—who knows? Certainly not the public, and apparently not the EU Trade spokesperson either. You probably see the real issue here: even if they removed all of the controversial provisions from CETA, there would still be the little matter of how they were trying to quietly push through all the exact same stuff that citizens and politicians across Europe rose up and rejected mere weeks ago. The public still had to learn about it via a leaked document. New information comes in the form of vague descriptions, not new public drafts. This is not how you negotiate an international agreement in the 21st century, and that's what people are reacting to.

I suspect the people behind CETA are really, really annoyed: they were so close to slipping this one through, and now they might have another ACTA on their hands. How many times does this have to happen before politicians, diplomats, and the special interest groups that drive these agreements realize they no longer get to operate without public scrutiny?

Even in the face of a resounding rejection of ACTA by the European Parliament last week, the European Commission seems determined to keep pushing for its eventual adoption. Techdirt noted some ways in which it might try to do that, but an important article by Michael Geist lays out what seems to be an alternative approach that is already close to fruition:

According to recently leaked documents [pdf], the EU plans to use the Canada-EU Trade Agreement (CETA), which is nearing its final stages of negotiation, as a backdoor mechanism to implement the ACTA provisions.

Here's how that would work:

The European Commission strategy appears to be to use CETA as the new ACTA, burying its provisions in a broader Canadian trade agreement with the hope that the European Parliament accepts the same provisions it just rejected with the ACTA framework. If successful, it would likely then argue that ACTA poses no new concerns since the same rules were approved within the Canadian trade deal.

What's extraordinary is how slavishly the CETA IP chapter follows ACTA -- Geist's post provides a table comparing the two in detail, and for many key issues, CETA adopts ACTA's wording exactly.

This includes requiring the promotion of "cooperative efforts" that could see ISPs taking down content on a "voluntary" basis; the use of the meaningless term "fair process"; disclosure of a subscriber's information "expeditiously" upon accusation of infringement; civil damages that consider "any legitimate measure of value that may be submitted by the right holder, including lost profits"; the use of the vague term "commercial scale" for both civil and criminal enforcement measures; and criminal liability for "aiding and abetting" infringement.

What that means is that practically all of the key stumbling blocks that persuaded the European Parliament to vote against ACTA are also present in CETA. As Geist observes;

The backdoor ACTA approach creates enormous risks for Canada's trade ambitions. Given the huge anti-ACTA movement, the Canada-EU trade deal could face widespread European opposition with CETA becoming swept up in similar protests.

After all, if those proposals were problematic in ACTA, they are equally problematic for CETA, and so it seems likely that the European Parliament will vote against the entire Canada-EU trade deal just as it threw out ACTA. The obvious solution is to remove the intellectual property chapter from CETA altogether to avoid this risk. Geist points out there's an important precedent for this:

the U.S. and EU recently announced their own plans to negotiate a trade deal but agreed to keep intellectual property issues out of the talks. If CETA becomes known as ACTA II, the future of the Canada-EU trade deal may hinge on adopting a similar approach.

That would not only be a good idea for CETA, it would be sensible for all trade agreements, since it would return them to their original aim of promoting trade between nations, not regulating the domestic laws governing things like copyright.

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