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<title>Techdirt. Stories filed under &quot;acta&quot;</title>
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<item>
<pubDate>Wed, 5 Jun 2013 00:25:00 PDT</pubDate>
<title>EU's Chief Negotiator Has Learned Nothing From ACTA, Will Negotiate TAFTA In Secret</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20130524/01223523202/eus-chief-negotiator-has-learned-nothing-acta-will-negotiate-tafta-secret.shtml</link>
<guid>http://www.techdirt.com/articles/20130524/01223523202/eus-chief-negotiator-has-learned-nothing-acta-will-negotiate-tafta-secret.shtml</guid>
<description><![CDATA[ The EU trade Commissioner, <a href="http://www.techdirt.com/blog/?tag=karel+de+gucht">Karel De Gucht</a>, was a driving force behind ACTA, and apparently he's learned nothing about why ACTA failed so spectacularly in Europe.  MEP Christian Engstrom pointed out to De Gucht that a big part of the reason why ACTA failed was the lack of transparency, and asked him to be more transparent with TAFTA (the Trans Atlantic Free Trade Agreement, but which many are calling TTIP -- for Transatlantic Trade and Investment Partnership).  <a href="http://christianengstrom.wordpress.com/2013/05/23/eu-commissioner-de-gucht-says-no-to-transparent-ttip-negotiations/" target="_blank">De Gucht's response</a> was to insist that he cannot negotiate transparently, and then to outright mock Parliament for suggesting that it has a role in the negotiations.
<blockquote><i>
... on the subject of openness, I have no problem saying what we are doing and what we want to achieve and, when not speaking in public, how I want to achieve this. But you are all politicians. So you should know &#8211; and I think you do know &#8211; that you cannot negotiate openly. You do not do that in your parties either; you do not do that in your constituencies. You need to focus &#8211; and yes, of course we have to report on what we are doing, explaining why we are doing things and why we are making some concessions; we will have to make concessions in the course of these negotiations. But you need a certain degree of confidentiality in negotiations. You also need it because your counterpart is asking for it; if not, you cannot negotiate.
<br /><br />
It is interesting that it seems that there is a copy of one of the drafts of the negotiating mandate. So what? It is a draft. The Presidency has, of course, to make sure that they come to an agreement within the Council, so they put forward possible ways to get out of any difficulties that we have to deal with. Immediately, very vocal Members of this Parliament say that this is a scandal and that we are traitors and cannot be trusted. Of course you can trust me, because in the end you can say &#8216;No&#8217;. You have done so in the past. You said &#8216;No&#8217; to ACTA: I am still not convinced that it was the right choice, but you decided to do so and that was how it was. You have the final word.
<br /><br />
But a parliament is not created to negotiate. It is not its job. I think I have been in a parliament for a longer time than most of you &#8211;25 years. Maybe there are some who have been in a parliament as long &#8211; Mr Brok has already left, but he has certainly been in a parliament for more than 25 years &#8211; but not very many. I have never sought to negotiate an agreement from within a parliament because it simply does not work.
<br /><br />
What you have to do &#8211; and you do it in an eloquent way &#8211; is indicate the important points that you want to mention, that you want me to look at and which you will question me about. You will scrutinise me and in the end will vote against me if I do not do that. But a parliament cannot negotiate, because a parliament only exists as a body when it votes. Outside of voting you take up individual positions. You cannot negotiate with 20, 30 or 50 different positions. That is not possible. You need to negotiate on the basis of a mandate, and then, of course, you have to demonstrate that you have been following your mandate.
</i></blockquote>
Of course, MEPs weren't asking to let Parliament negotiate the deal, just for some <i>transparency</i> in what was being negotiated in the public's name.  De Gucht's answer is misleading.  Plenty of international agreements are negotiated with significantly greater transparency than what happened in ACTA, what's happening now with TPP and what's likely with TAFTA/TTIP.  Governments can and should reveal the basic things they are negotiating for, to allow for some level of public comment.  But that's not what happens.  Things are negotiated in secret, in backrooms, with the help of industry lobbyists, and at the end we're given a "take it or leave it" document, which then (in most cases) is rammed through with little debate.  It's the opposite of democracy.
<br /><br />
Of course, ACTA showed that the public can rise up and take a stand against this, and Engstrom points out that if they did it for ACTA, they can do it again:
<blockquote><i>
The positive thing about the whole ACTA affair was that there are now hundreds of thousands of European citizens who have, at least once, been demonstrating on the streets of various European cities against the trade agreement. There are lots of citizens now who take an interest in these agreements.
<br /><br />
This is a very positive thing, but by insisting on the same kind of secrecy &#8211; only handing out secret documents to the members of the INTA Committee &#8211; the Commission is setting itself up for the same kind of failure. I would urge you to re-think this and become transparent.
</i></blockquote>
It appears that De Gucht has decided <i>not</i> to re-think this, and to take the position that the ACTA response was an aberration. I'm sure that will play well with all the people who fought against ACTA.<br /><br /><a href="http://www.techdirt.com/articles/20130524/01223523202/eus-chief-negotiator-has-learned-nothing-acta-will-negotiate-tafta-secret.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130524/01223523202/eus-chief-negotiator-has-learned-nothing-acta-will-negotiate-tafta-secret.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130524/01223523202/eus-chief-negotiator-has-learned-nothing-acta-will-negotiate-tafta-secret.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>not-a-good-idea</slash:department>
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<item>
<pubDate>Wed, 24 Apr 2013 23:58:00 PDT</pubDate>
<title>Not Learning From ACTA: IPR Protection And Enforcement Seen As 'Less Difficult Issue' For TAFTA/TTIP</title>
<dc:creator>Glyn Moody</dc:creator>
<link>http://www.techdirt.com/articles/20130423/03514622805/not-learning-acta-ipr-protection-enforcement-seen-as-less-difficult-issue-taftattip.shtml</link>
<guid>http://www.techdirt.com/articles/20130423/03514622805/not-learning-acta-ipr-protection-enforcement-seen-as-less-difficult-issue-taftattip.shtml</guid>
<description><![CDATA[ <p>
Despite increasing calls for the imminent <a href="https://www.techdirt.com/articles/20130207/08080221909/us-europe-move-to-tafta-yet-another-chance-to-push-through-actasopa-style-ip-maximalism.shtml">TAFTA/TTIP</a> trade negotiations to be conducted as openly as possible, it seems likely that, as with ACTA and TPP, everything will be decided behind closed doors.  That means the rest of us are forced to take our information about what is likely to happen where we can find it. For example, a new survey entitled "<a href="http://www.bfna.org/sites/default/files/TTIPReport2_FINAL%20(2).pdf">The Transatlantic Trade and Investment Partnership: Ambitious but Achievable</a>" (pdf), carried out by The Bertelsmann Foundation and Atlantic Council, offers some interesting thoughts on the subject.  Here's the description:

<i><blockquote>The Bertelsmann Foundation and Atlantic Council surveyed more than 400 potential respondents from business, academia, government, legislatures, and the media; 120 participated in the survey. Potential participants were selected on the basis of their expertise in trade policy and familiarity with the issues at hand in the TTIP negotiations. Respondents hailed from both sides of the Atlantic, with stakeholders from Washington, Brussels and Germany heavily represented.</blockquote></i>

Even though the subtitle of the survey is "A Stakeholder Survey and Three Scenarios", that's not really true: the main stakeholder -- the public -- is not represented at all.  For what it's worth, 88 per cent of respondents think that the US and EU will manage to come to an agreement, with the majority expecting a "moderate" result, rather than broader or narrower ones.  The general view was that such an agreement might come into force at the end of 2016.  But the section that will probably be of most interest to Techdirt readers is the following, which ranks areas in order of the likelihood they will be part of the final deal:

<i><blockquote>Perhaps surprisingly given the recent failure to ratify the Anti-Counterfeit Trade Agreement (ACTA) in Europe, IPR protection and enforcement on A/V materials and software is seen as a less difficult issue by stakeholders, ranking fourth.</blockquote></i>

Indeed, that <b>is</b> surprising: the <a href="https://www.techdirt.com/articles/20120704/07533019579/european-parliament-declares-its-independence-european-commission-with-massive-rejection-acta-now-what.shtml">rejection</a> of ACTA's measures by the European Parliament -- to say nothing of the tens of thousands of people who took to the streets of Europe -- was overwhelming: why do the "stakeholders" think this time will be different?
</p>
<p>
As well as "less difficult" issues, the survey also dicusses where respondents think there's little hope of achieving agreement:

<i><blockquote>Interestingly, an issue that touches on some similar policy provisions -- the alignment of regulations concerning data protection and privacy [--] is considered extremely difficult, ranking 15th out of 17 issues surveyed. Transatlantic regulatory process convergence is particularly challenging, deemed by experts as both one of the most difficult issues (16th out of 17) and the most important overall to the agreement. Alignment in the use of GMOs and hormone-treated agricultural products was deemed most difficult.</blockquote></i>

The first of these is no surprise: there is currently a fierce battle going on between the US and EU views on data protection, with US lobbyists using rather <a href="https://www.techdirt.com/articles/20130212/04013421949/how-lobbyists-changes-to-eu-data-protection-regulation-were-copied-word-for-word-into-proposed-amendments.shtml">extreme</a> methods to get some of their ideas adopted in the EU's Data Protection Regulation that is currently being discussed.  Similarly,  the gulf between US and EU views on the presence of genetically-modified organisms and hormones in the food chain is well known.
</p>
<p>
Obviously, not too much can be read into the views of a fairly small and arbitrary group of people selected by The Bertelsmann Foundation and Atlantic
 Council.  The fact that they think re-introducing some of ACTA's ideas might be one of the "less difficult" issues for TAFTA/TTIP suggests that they are either completely out of touch, or know something that we don't -- which is precisely why it's worth reading the full document just in case they do.
</p>
<p>
Follow me @glynmoody on <a href="http://twitter.com/glynmoody">Twitter</a> or <a href="http://identi.ca/glynmoody">identi.ca</a>, and on <a href="https://plus.google.com/100647702320088380533">Google+</a>
</p><br /><br /><a href="http://www.techdirt.com/articles/20130423/03514622805/not-learning-acta-ipr-protection-enforcement-seen-as-less-difficult-issue-taftattip.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130423/03514622805/not-learning-acta-ipr-protection-enforcement-seen-as-less-difficult-issue-taftattip.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130423/03514622805/not-learning-acta-ipr-protection-enforcement-seen-as-less-difficult-issue-taftattip.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>what-do-they-know-that-we-don't?</slash:department>
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<pubDate>Wed, 10 Apr 2013 14:43:00 PDT</pubDate>
<title>How Multilateral Free Trade Agreements Are Bypassing Democratic Decision-Making Around The World</title>
<dc:creator>Glyn Moody</dc:creator>
<link>http://www.techdirt.com/articles/20130404/11574022580/how-multilateral-free-trade-agreements-are-bypassing-democratic-decision-making-around-world.shtml</link>
<guid>http://www.techdirt.com/articles/20130404/11574022580/how-multilateral-free-trade-agreements-are-bypassing-democratic-decision-making-around-world.shtml</guid>
<description><![CDATA[ <p>
One of the most worrying aspects of ACTA -- which began life as a "simple" treaty about combatting counterfeit goods -- was how it morphed into a new approach to global policy making.  This had two key aspects.  First, the treaty would be negotiated in secret, with minimal input from the public, but plenty from lobbyists, who were given access to key documents and to negotiators.  Secondly, the results of those secret negotiations were designed to constrain the participating governments in important ways that nullified ordinary democratic decision-making.  If at all, representative bodies were presented with a take-it-or-leave it choice; changing individual details was not an option.
</p>
<p>
That, in its turn, meant that public in those countries had very little chance to fight harmful provisions in a treaty, since the only way to do that was to persuade their government to reject it completely, which was extremely difficult after the years of negotiation.  The European Parliament's dramatic <a href="https://www.techdirt.com/articles/20120704/07533019579/european-parliament-declares-its-independence-european-commission-with-massive-rejection-acta-now-what.shtml">refusal</a> to agree to ACTA was largely because of the unusual division of power in the European Union.
</p>
<p>
TPP has adopted exactly the same process: negotiations behind closed doors, but this time, without even the occasional official release of drafts as happened with ACTA (luckily, there have been leaks.)  And assuming the negotiations are concluded successfully, it is likely that national legislatures will be presented with the same take-it-or-leave-it offer, with huge pressure to accept.
</p>
<p>
More recently, the newly-announced transatlantic free trade agreement (TAFTA) between the US and the EU is gaining momentum, not least in terms of the countries that may ask to join.  At the last count, these included <a href="https://www.techdirt.com/articles/20130313/10181122311/mexico-will-ask-to-join-us-eu-transatlantic-trade-agreement.shtml">Mexico, Canada</a> and <a href="https://www.techdirt.com/articles/20130318/11050622367/now-us-wants-transatlantic-free-trade-agreement-with-european-union-to-include-turkey-whos-next.shtml">Turkey</a>.  The <a href="http://www.bilaterals.org/spip.php?article22954">US has also started talking to West African states about a free trade agreement</a>, and it's easy to see that being rolled into TAFTA at some point.
</p>
<p>
TPP is also expanding rapidly.  Mexico and Canada have already <a href="https://www.techdirt.com/articles/20120618/15271219371/us-invites-mexico-canada-to-join-tpp-negotiations-with-less-power.shtml">joined</a>, under pretty humiliating terms, while Japan has signalled that it <a href="http://www.bbc.co.uk/news/business-21799683">wishes</a> to do so.  Recently we learned that <a href="http://www.tax-news.com/news/No_Deadlines_On_South_Korea_Taiwan_TPP_Accession______60206.html">South Korea and Taiwan are considering applying</a>.
</p>
<p>
As we've <a href="https://www.techdirt.com/articles/20130313/10181122311/mexico-will-ask-to-join-us-eu-transatlantic-trade-agreement.shtml">noted</a> before, putting together TPP and TAFTA, it's striking how they include all of the world's biggest economies outside the so-called BRICS group of emerging countries -- Brazil, Russia, India, China and South Africa.  The natural response to being locked out of the two US-centric trade areas would be to form their own, and in fact <a href="http://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/india-to-hold-fta-plus-talks-with-customs-union-troika/article4579024.ece">India has begun talks with the Customs Union of Russia, Belarus and Kazakhstan</a> about a free trade agreement.  Significantly, enlarging that to including other nearby countries is already being mooted:

<i><blockquote>Kazakhstan's neighbour Kyrgyzstan is likely to be the fourth entrant and Tajikistan could over time be the fifth country to joint the Customs Union. Ukraine, Armenia and Moldovia would also be moving close to the Customs Union but for some time they are likely to be the first three countries outside the core.</blockquote></i>

Meanwhile, <a href="http://abclocal.go.com/kfsn/story?section=news/business&#038;id=9045293">China is keen to form a major trade bloc with South Korea and Japan</a>:

<i><blockquote>"China's intention is to first form a Northeast Asian economic cooperation that excludes the U.S. while Japan can't sit still as South Korea advances to the Chinese market with Korea-China free trade talks," said Heo Yoon, a professor at Sogang University Graduate School of International Studies.</blockquote></i>

It's easy to imagine other countries that are part of the Association of Southeast Asian Nations (ASEAN) Free Trade Area joining the group if and when formal negotiations get underway, not least because <a href="https://en.wikipedia.org/wiki/ASEAN_Free_Trade_Area#Related_free_trade_areas">ASEAN already has free trade agreements with China, Japan and South Korea</a>.
</p>
<p>
Although bilateral trade agreements are hardly new -- <a href="https://en.wikipedia.org/wiki/List_of_bilateral_free_trade_agreements">Wikipedia lists dozens of them, some going back to the 1980s</a> -- there has definitely been a step-change recently.  Increasingly, the emphasis is on joining multilateral free trade agreements like TPP and TAFTA, involving significant numbers of countries.  On the part of smaller nations, their interest is probably driven by a fear of getting shut out of key markets.  But for the bigger players -- notably the US and EU -- it's a convenient way of imposing unpalatable policies not just on the citizens of other countries, but on their own, too.
</p>
<p>
Follow me @glynmoody on <a href="http://twitter.com/glynmoody">Twitter</a> or <a href="http://identi.ca/glynmoody">identi.ca</a>, and on <a href="https://plus.google.com/100647702320088380533">Google+</a>
</p><br /><br /><a href="http://www.techdirt.com/articles/20130404/11574022580/how-multilateral-free-trade-agreements-are-bypassing-democratic-decision-making-around-world.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130404/11574022580/how-multilateral-free-trade-agreements-are-bypassing-democratic-decision-making-around-world.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130404/11574022580/how-multilateral-free-trade-agreements-are-bypassing-democratic-decision-making-around-world.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>behind-closed-doors</slash:department>
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<item>
<pubDate>Wed, 27 Mar 2013 11:14:00 PDT</pubDate>
<title>The Power Of International Trade Agreements To Prevent You From Owning What You've Bought, And Why This Must Be Fixed</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20130323/01570922426/free-trade-agreements-with-hidden-easter-eggs-content-industry-are-making-it-difficult-congress-to-fix-phone-unlocking.shtml</link>
<guid>http://www.techdirt.com/articles/20130323/01570922426/free-trade-agreements-with-hidden-easter-eggs-content-industry-are-making-it-difficult-congress-to-fix-phone-unlocking.shtml</guid>
<description><![CDATA[ Back when the US was negotiating ACTA, we were among those who raised the alarm about just how troubling this trade agreement was -- negotiated in back rooms by the USTR, with details that were kept in secret until they were locked in.  In response, many of our critics said that we were overreacting, since ACTA was merely an <a href="http://www.techdirt.com/articles/20100209/1505538101.shtml">"executive agreement"</a> which (1) could not bind Congress to anything and (2) would not require any changes to US law, so it was "no big deal."  In fact, we were <a href="http://www.techdirt.com/articles/20100209/1505538101.shtml#c570">directly told</a> that Congress would not feel bound by such things, so we should shut up with our "same tired arguments," which were nothing but a "chicken little mentality" based on "what ifs."
<br /><br />
Of course, part of our very specific concern about ACTA was that even if it required no direct changes in law, it very clearly <a href="http://www.techdirt.com/articles/20120124/11270917527/what-is-acta-why-is-it-problem.shtml">locked in</a> existing problematic laws, making it much more difficult to fix those problems.  And while it did not technically "bind" Congress, the second that anyone in Congress proposed a law that went against the international agreement, we'd hear screaming from the usual crew of copyright lobbyists about how Congress was doing the most horrible of horribles in "violating our international agreements."  Of course, they'd leave out the fact that they wrote or heavily influenced those agreements as a way to directly <a href="https://www.techdirt.com/articles/20130317/22174522355/join-conversation-keeping-international-agreements-restricting-internet-freedom.shtml">route around Congress</a>.
<br /><br />
For all the claims of Chicken Littles and what ifs, in the last few weeks, the "hypothetical" situations we discussed have become very, very real, and have highlighted why it's so problematic that the USTR is including copyright and patent issues in international trade agreements.  First, as we noted a few weeks ago, on the issue of <a href="http://www.techdirt.com/blog/wireless/articles/20130304/10334222192/white-house-says-mobile-phone-unlocking-should-be-legal.shtml">phone unlocking</a>, some existing US trade agreements have made it <a href="http://www.techdirt.com/blog/wireless/articles/20130311/01344922277/government-might-want-to-legalize-phone-unlocking-unfortunately-it-signed-away-that-right.shtml">difficult</a> to actually fix the issue.  In particular, we named KORUS, the free trade agreement we signed with South Korea half a decade ago, which included a number of copyright provisions, pushed by the entertainment industry (who had flipped out because South Korea was one of the first countries blanketed in broadband).  The end result of that, however, is that it would go against that agreement to actually fix the problem (as the White House claims it wants) of phone unlocking being illegal.
<br /><br />
Now, as Shirwin Siy correctly points out, <a href="http://www.publicknowledge.org/blog/no-ones-signed-away-right-unlock-cell-phones" target="_blank">Congress is not technically bound by such agreements</a> and <b>can</b> overrule them:
<blockquote><i>
First of all, trade agreements don't dictate what laws Congress can and can't pass. If they're executive agreements, they can't override any laws passed by Congress in the past, and even if they're executed as treaties, they can be superseded by later acts of Congress. Just like Congress can pass a law that overrides an earlier law, it can pass a law that overrides an earlier treaty.
</i></blockquote>
That's technically true, but the reality is not so easy.  Soon after my post went up, I started hearing from people all over DC about this issue.  In the past few weeks, in talking to numerous capitol hill staffers, as well as with a variety of others involved in the discussions, one thing has become clear: while some in Congress really wanted to do a comprehensive fix on unlocking, the realization that international agreements get in the way may have scuttled those plans entirely.  They recognize that Siy is correct, and that Congress is not technically bound, but what becomes clear is that the <i>political reality</i> is, in fact, very different.  Proposing a bill that goes against an international agreement is seen as a no-no and the political fight it would take to get that bill to actually do anything just probably isn't worth it.
<br /><br />
So, there we have a very real and very tangible example of an agreement that technically didn't "change" our laws, now locking us in to a bad situation.
<br /><br />
And... it could be even worse.  For all the talk of how Congress isn't actually bound by the USTR's negotiations, it appears that someone forgot to tell that to certain members of the Supreme Court.  When the <a href="http://www.techdirt.com/articles/20130319/08094922377/supreme-court-gets-it-right-kirtsaeng-you-can-resell-things-you-bought-abroad-without-infringing.shtml">Kirtsaeng case</a> came out last week, the dissent, written by Justice Ginsburg, repeatedly cited <i>international agreements</i> for her interpretation of <i>the law</i>, even though those agreements aren't supposed to define or bind the law.  John Bergmayer points out <a href="http://www.publicknowledge.org/blog/kirtsaeng-trade" target="_blank">how <b>wrong</b> this is</a>:
<blockquote><i>
It is thus relevant that Justice Ginsburg writes, in dissenting from the majority opinion, that "[u]nlike the Court's holding, my position is consistent with the stance the United States has taken in international trade negotiations." But trade negotiators do not get to decide what the law is: Congress passes statutes and courts interpret them. The USTR is not part of this workflow. If trade negotiators have ever taken positions that are inconsistent with Kirtsaeng then those positions are now, and always have been contrary to US law. I would make a similar argument even if Kirtsaeng came out the other way: trade negotiators should not try to anticipate how contentious legal battles will turn out. They should steer clear of these areas entirely and allow the system to do its work.
</i></blockquote>
So even though the law is clear that the USTR's secretive negotiations (often driven by the copyright industry) cannot actually make the law, even at least three Supreme Court justices seem confused on this point.
<br /><br />
And it could get even worse.  That's because with the still secretive TPP agreement, that is supposedly nearing completion, a look at what little leaked text there is on the issue of copyright shows that <a href="http://infojustice.org/archives/29043" target="_blank">the TPP disagrees with the Kirtsaeng ruling</a> and would require the US to kill off first sale rights on foreign made products to "meet our international obligations."  The leaked text includes the following:
<blockquote><i>
&#8220;Article 4(2). Each Party shall provide to authors, performers, and producers of phonograms the right to authorize or prohibit the importation into that Party&#8217;s territory of copies of the work, performance, or phonogram made without authorization, or made outside that Party&#8217;s territory with the authorization of the author, performer, or producer of the phonogram.&#8221;
</i></blockquote>
And while the TPP is not yet in effect, Sean Flynn (at the link above) notes that some other free trade agreements negotiated by the USTR already have similar provisions.  That's why Ginsburg was so concerned about our supposed "international obligations" in her dissent on Kirtsaeng.  Since copyright lobbyists are already pushing to <a href="http://www.techdirt.com/articles/20130319/18153322384/congressman-already-claims-that-he-needs-to-overturn-supreme-court-ruling-kirtsaeng.shtml">overturn</a> the Supreme Court's ruling with new laws, you can bet that we'll soon be hearing claims that we need to do this to "meet our international obligations."
<br /><br />
The point of all of this?  The USTR shouldn't be involved, at all, in negotiating IP issues in any such international agreements.  Not only is it antithetical to their stated purpose and despite the law being to the contrary, many in both Congress and the Supreme Court, really do feel that we are "bound" by those agreements, even if they were never approved by Congress and cover topics, such as copyright, which <i>only</i> Congress has the mandate to create and change.  The "hypotheticals" we discussed around ACTA are no longer "what ifs," but are very real and should be a major concern.
<br /><br />
With an attempt at real copyright reform on the table, the fact that the USTR may be seen (whether legally or not) as tying the hands of Congress should be reason enough to simply take those sections out of any and all trade agreements.  They don't belong there and they're clearly causing significant problems for the public's best interests within the US.  The USTR process is not transparent.  It does not involve the public and is not responsive to the needs of voters.  That Congress is then effectively unable to do such basic things as allowing the public to unlock their mobile phones (even at the White House's request) or to guarantee that we actually own what we've bought, show just how problematic the situation has become.  A few people in Congress are now waking up to this fact, but too many are still oblivious.  It's amazing that Congress has allowed the USTR to cut off its own power in this manner.
<br /><br />
To fix this, the USTR needs to reject any language around intellectual property in any ongoing international agreements, and must look to pull that language out of earlier agreements.  It just doesn't make any sense.  Congress needs to assert itself, and let the USTR and the executive branch know that only it has say over copyright and patent laws, as per the Constitution.  And, finally, if the White House truly believed what it said about mobile phone unlocking, it should order the USTR to reverse course -- and, as part of that, to start being much more transparent and responsive to the public as it negotiates any such agreements.<br /><br /><a href="http://www.techdirt.com/articles/20130323/01570922426/free-trade-agreements-with-hidden-easter-eggs-content-industry-are-making-it-difficult-congress-to-fix-phone-unlocking.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130323/01570922426/free-trade-agreements-with-hidden-easter-eggs-content-industry-are-making-it-difficult-congress-to-fix-phone-unlocking.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130323/01570922426/free-trade-agreements-with-hidden-easter-eggs-content-industry-are-making-it-difficult-congress-to-fix-phone-unlocking.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>just-as-we-suspected</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20130323/01570922426</wfw:commentRss>
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<pubDate>Wed, 20 Mar 2013 03:34:25 PDT</pubDate>
<title>Patents, Trademarks And Copyrights Have No Place In Trade Agreements</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20130319/02354522372/patents-trademarks-copyrights-have-no-place-trade-agreements.shtml</link>
<guid>http://www.techdirt.com/articles/20130319/02354522372/patents-trademarks-copyrights-have-no-place-trade-agreements.shtml</guid>
<description><![CDATA[ As we've discussed before, one of the sneakier moves of the content industry (and, later, the pharmaceutical industry) was to jump into the international trade process, to circumvent national governments and to effectively force them into passing laws that they liked.  We've been <a href="http://www.techdirt.com/articles/20130317/22174522355/join-conversation-keeping-international-agreements-restricting-internet-freedom.shtml">raising concerns</a> about this whole process, and it appears that many public interest/civil service groups agree.  With the US and Europe getting ready to start negotiations on a "trans-atlantic free trade agreement" (TAFTA), a large group of public interest/civil service groups have teamed up to issue a declaration that <a href="https://www.citizen.org/IP-out-of-TAFTA" target="_blank">"intellectual property" has no place in free trade agreements</a>.  It also demands much more transparency in any negotiation.
<blockquote><i>
First, we insist that the European Union and United States release, in timely and ongoing fashion, any and all negotiating or pre-negotiation texts. We believe that secretive &#8220;trade&#8221; negotiations are absolutely unacceptable forums for devising binding rules that change national non-trade laws.
<br /><br />
Second, we insist that the proposed TAFTA exclude any provisions related to patents, copyright, trademarks, data protection, geographical indications, or other forms of so-called &#8220;intellectual property&#8221;. Such provisions could impede our rights to health, culture, and free expression and otherwise affect our daily lives.
<br /><br />
Past trade agreements negotiated by the US and EU have significantly increased the privileges of multinational corporations at the expense of society in general. Provisions in these agreements can, among many other concerns, limit free speech, constrain access to educational materials such as textbooks and academic journals, and, in the case of medicines, raise healthcare costs and contribute to preventable suffering and death.
<br /><br />
Unless &#8220;intellectual property&#8221; is excluded from these talks, we fear that the outcome will be an agreement that inflicts the worst of both regimes&#8217; rules on the other party. From a democratic perspective, we believe that important rules governing technology, health, and culture should be debated in the US Congress, the European Parliament, national parliaments, and other transparent forums where all stakeholders can be heard&#8212;not in closed negotiations that give privileged access to corporate insiders.
<br /><br />
The TAFTA negotiations must not lead to a rewriting of patent and copyright rules in a way that tilts the balance even further away from the interests of citizens.
</i></blockquote>
Frankly, they could go much further in their statement.  As we've pointed out for <a href="http://www.techdirt.com/articles/20070508/162743.shtml">years</a>, things like patents and copyrights are the exact opposite of "free trade."  They are, by definition, restrictions on free trade -- and a form of protectionism.  If the goal of a free trade agreement is to remove those kinds of restrictions and ease the flow of trade between nations, it seems incredibly strange to bundle it with blatant mercantilist concepts of protectionism and monopolies.<br /><br /><a href="http://www.techdirt.com/articles/20130319/02354522372/patents-trademarks-copyrights-have-no-place-trade-agreements.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130319/02354522372/patents-trademarks-copyrights-have-no-place-trade-agreements.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130319/02354522372/patents-trademarks-copyrights-have-no-place-trade-agreements.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>it's-not-a-matter-of-trade</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20130319/02354522372</wfw:commentRss>
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<pubDate>Mon, 18 Mar 2013 11:10:38 PDT</pubDate>
<title>Join The Conversation On Keeping International Agreements From Restricting Internet Freedom</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20130317/22174522355/join-conversation-keeping-international-agreements-restricting-internet-freedom.shtml</link>
<guid>http://www.techdirt.com/articles/20130317/22174522355/join-conversation-keeping-international-agreements-restricting-internet-freedom.shtml</guid>
<description><![CDATA[ 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, <a href="http://www.amazon.com/gp/product/1595581227/ref=as_li_ss_tl?ie=UTF8&#038;camp=1789&#038;creative=390957&#038;creativeASIN=1595581227&#038;linkCode=as2&#038;tag=techdirtcom-20"><i>Information Feudalism: Who Owns the Knowledge Economy?</i></a>, 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 <i>admit</i> 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.
<br /><br />
Just last week, we also highlighted how existing international free trade agreements <a href="http://www.techdirt.com/blog/wireless/articles/20130311/01344922277/government-might-want-to-legalize-phone-unlocking-unfortunately-it-signed-away-that-right.shtml">make it difficult</a> for Congress to fix something as simple as making it legal to unlock your mobile phones, even if the White House has come out <a href="http://www.techdirt.com/blog/wireless/articles/20130304/10334222192/white-house-says-mobile-phone-unlocking-should-be-legal.shtml">in favor</a> 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.
<br /><br />
Given those concerns, the folks at Open Media have set up a <a href="http://openmedia.org/blog/lets-come-plan-stop-international-agreements-restricting-internet-freedom" target="_blank">day of discussion about how the public can stop international agreements</a> from restricting internet freedom.
<blockquote><i>
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?  
</i></blockquote>
They're hosting <a href="http://www.reddit.com/r/IAmA/comments/1ajboq/we_are_internet_freedom_advocates_and_online/" target="_blank">a Reddit AMA to discuss this</a> (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.<br /><br /><a href="http://www.techdirt.com/articles/20130317/22174522355/join-conversation-keeping-international-agreements-restricting-internet-freedom.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130317/22174522355/join-conversation-keeping-international-agreements-restricting-internet-freedom.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130317/22174522355/join-conversation-keeping-international-agreements-restricting-internet-freedom.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>this-is-important</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20130317/22174522355</wfw:commentRss>
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<pubDate>Tue, 12 Mar 2013 14:03:46 PDT</pubDate>
<title>Canadian Delusions: ACTA Supporters Pretend It's Just About Counterfeit Goods</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20130306/14483122222/canadian-delusions-acta-supporters-pretend-its-just-about-counterfeit-goods.shtml</link>
<guid>http://www.techdirt.com/articles/20130306/14483122222/canadian-delusions-acta-supporters-pretend-its-just-about-counterfeit-goods.shtml</guid>
<description><![CDATA[ One of the nastier tricks of copyright maximalists has been to lump together "counterfeiting" with "copyright infringement" in an effort to conveniently <a href="http://www.techdirt.com/articles/20100722/01263010314.shtml">jump back and forth</a> when making silly arguments.  Basically, they can argue that copyright infringement is a <i>huge</i> issue, because of the massive amount of unauthorized sharing that happens online.  But they have a lot of trouble showing real harm.  On the other side, counterfeiting really isn't that big of a problem when you look closely at the details, but there are a few, extremely limited cases (faulty counterfeit airplane parts, some fake drugs) where there could be real harm.  So if you lump them all together you can claim "massive problems" with "real harm."  But that doesn't work if you look at them individually.
<br /><br />
We recently wrote about some Canadian politicians introducing a bill to get Canada <a href="http://www.techdirt.com/articles/20130301/12143622173/ustr-to-canada-bow-down-accept-acta-canada-yes-we-shall-do-your-bidding.shtml">in compliance</a> with ACTA, despite the fact that ACTA has been totally discredited around the globe.  Some political opponents are now pushing back on that, calling the bill in question an attempt to get ACTA in "through the backdoor."  However, in response Canadian Industry Minister, Christian Paradis, <a href="http://www.michaelgeist.ca/content/view/6800/125/" target="_blank">just keeps repeating the "counterfeiting" mantra</a> and ignoring the entire ACTA elephant in the room.  Amusingly, Paradis seems unable to even admit that there are concerns here:
<blockquote><i>
During Question Period on Monday, Borg <a href="http://openparliament.ca/debates/2013/3/4/charmaine-borg-1/">asked</a> Industry Minister Christian Paradis directly if the bill paves the way for ratification of the discredited treaty:<br />
<blockquote>Mr. Speaker, last 
July the European Parliament rejected the anti-counterfeiting trade 
agreement over serious concerns about the regressive changes it would 
impose on intellectual property in the digital age. Yet on Friday, the 
Conservatives introduced a bill in the House that would pave the way for
 the ACTA without question. Canadians have concerns about goods being 
seized or destroyed without any oversight by the courts. Will the 
minister now be clear with Canadians? Are the Conservatives planning to 
ratify ACTA, yes or no?</blockquote>

Paradis <a href="http://openparliament.ca/debates/2013/3/4/christian-paradis-3/">refused to respond</a> to the ACTA ratification question:<blockquote>Mr. Speaker, we
are very happy to have introduced an anti-counterfeiting bill in
the House. Counterfeiting is a growing problem in Canada.
Counterfeiting deceives Canadians and is linked to
security-related issues. So it was our duty to modernize the
legislation to ensure that we can end counterfeiting, so that
Canadians are not deceived, and to provide better security.</blockquote>
Borg <a href="http://openparliament.ca/debates/2013/3/4/charmaine-borg-2/">tried
again</a> with a direct link between Bill C-56 and ACTA:
<blockquote>
Mr. Speaker, a
number of countries have rejected this unacceptable agreement.
The anti-counterfeiting trade agreement - ACTA - was drafted
behind closed doors and would incriminate the daily users of
cultural content. This agreement will turn our border officers
into instant copyright experts, without the adequate legal
support. Canada must seriously study the problem of
counterfeiting. However, the failure of Bill C-30 means that
Canadians do not have faith in this Conservative government. Is
Bill C-56 not simply a way to support ACTA through the back
door?</blockquote>
Paradis <a href="http://openparliament.ca/debates/2013/3/4/christian-paradis-4/">ducks
the question</a> once again:
<blockquote>
Mr. Speaker, let
us be clear: Bill C-56 is a way to support and protect Canadian
families.
<br /><br />
Counterfeiting is a growing problem that must be stopped.
Counterfeiting deceives Canadians and poses risks to the safety
of Canadians. We must ensure that the legislation is updated and
appropriate in order to equip the authorities with effective
tools to fight counterfeiting, which is exactly what was
introduced on Friday. If the NDP is responsible, I hope they
will support us.
</blockquote></i></blockquote>
See the talking point?  When asked about ACTA just lie and repeat "counterfeiting is a serious problem" over and over and over again, despite little proof to actually support that.  And, when really challenged, pull out the "it's for the children" card by saying that it's needed to protect families.  Yes, the families of the US-based executives of the legacy entertainment industry.<br /><br /><a href="http://www.techdirt.com/articles/20130306/14483122222/canadian-delusions-acta-supporters-pretend-its-just-about-counterfeit-goods.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130306/14483122222/canadian-delusions-acta-supporters-pretend-its-just-about-counterfeit-goods.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130306/14483122222/canadian-delusions-acta-supporters-pretend-its-just-about-counterfeit-goods.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>if-only</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20130306/14483122222</wfw:commentRss>
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<pubDate>Tue, 12 Mar 2013 03:41:28 PDT</pubDate>
<title>Public Well-Being Must Be 'Primary Measurement' Of US-EU Trade Agreement</title>
<dc:creator>Glyn Moody</dc:creator>
<link>http://www.techdirt.com/articles/20130306/09371522216/public-well-being-must-be-primary-measurement-us-eu-trade-agreement.shtml</link>
<guid>http://www.techdirt.com/articles/20130306/09371522216/public-well-being-must-be-primary-measurement-us-eu-trade-agreement.shtml</guid>
<description><![CDATA[ <p>
Now that the US and EU have <a href="http://www.bbc.co.uk/news/business-21439945">officially announced the start of talks</a> on a new bilateral <a href="https://www.techdirt.com/articles/20130207/08080221909/us-europe-move-to-tafta-yet-another-chance-to-push-through-actasopa-style-ip-maximalism.shtml">free trade agreement</a> -- sorry, a "trade and investment partnership" -- groups in both regions are trying to work out what this will mean for them and their constituents.  Arguably the most important constituency of all is the public, and yet it is also the one that until now has been systematically shut out of previous negotiations for things like ACTA or TPP.  One representative of that huge group -- though not, obviously, the only one -- is the <a href="http://www.tacd.org/">Transatlantic Consumer Dialogue</a> (TACD), which describes itself as follows:

<i><blockquote>a forum of US and EU consumer organisations which develops and agrees on joint consumer policy recommendations to the US government and European Union to promote the consumer interest in EU and US policy making.</blockquote></i>

With commendable speed, it has submitted <a href="http://tacd-ip.org/archives/875/tacd-ttip-letter_05-03-13">an open letter on the proposed agreement, addressed to Ron Kirk and Karel de Gucht</a>, who are leading their respective delegations (pdf).  Early on, it states the TACD's basic position:

<i><blockquote>We believe that advancement of consumer well-being must be the primary measurement of whether such a trade pact should be adopted or not. We are very sceptical that a trade partnership built around regulatory convergence will serve consumer interests, and we will vigorously oppose a deal that dismantles existing EU and US consumer protection.</blockquote></i>

The concern here is that the trade pact will have the effect of levelling consumer protection <b>downwards</b>, to the lower of the two standards found in the US and EU.  That might be convenient for industries looking to cut costs and boost profits, but as TACD points out, consumer interests are unlikely to be served.  It then goes on to address several particular areas of concern, including copyright and patents:

<i><blockquote>Provisions on intellectual property (IP) rights should ensure governments may enact robust limitations and exceptions to rights, and limitations on remedies. IP enforcement should be proportionate and respect the right to a judicial remedy. In some areas, mandatory minimum exceptions should be addressed, such as robust cross-border exceptions for disabilities or distance education. Access to medical technologies and knowledge should not be undermined.</blockquote></i>

It also has strong views on the <a href="https://www.techdirt.com/articles/20130208/03441521918/canada-denies-patent-drug-so-us-pharma-company-demands-100-million-as-compensation-expropriation.shtml">increasingly-problematic</a> area of investor-state disputes:

<i><blockquote>Investors should not be empowered to sue governments to enforce the agreement in secretive private tribunals, and to skirt the well-functioning domestic court systems and robust property rights protections in the United States and European Union. Experience elsewhere shows how powerful interests from tobacco companies to corporate polluters have used investor-state dispute resolution provisions to challenge and undermine consumer and environmental protections. Investors must not be empowered to sue governments directly for compensation before foreign investor tribunals over regulatory policy (including "indirect" expropriation), contract disputes, nor guarantee a Minimum Standard of Treatment for foreign investors.</blockquote></i>

It concludes by raising the key issue mentioned at the start of this post: the fact that the public has been comprehensively excluded from previous trade negotiations, even though the latter are supposedly conducted in its name.

<i><blockquote>With talks now slated for a fully-fledged Transatlantic trade agreement, it is vital that governmental negotiators reform their engagement with consumer organisations and civil society. We must have a fully open process. Citizens in Europe and the United States will not accept a closed, secret process, with the results revealed only when negotiations are concluded for an up or down vote.
<br /><br />
Nothing is more important to an open process than publication of negotiating texts as they are developed.</blockquote></i>

That last point is important.  Once texts have been discussed during the negotiations, there is no reason not to publish them: after all, there are no "secrets" that might be revealed to the other side -- the usual excuse for not allowing the public to see texts as negotiations are being conducted.  Industry insiders already have access, so the only people that would be kept in the dark by not publishing them are the 800 million citizens of the US and EU.
</p>
<p>
Just as the advancement of consumer well-being should be the "primary measurement" of whether the trade agreement should be signed or not, so the public must be recognized as the primary stakeholder that has a right to see all texts once they have been discussed.  If they don't, then those negotiations simply forfeit any claim to real legitimacy in a world where basic transparency can be achieved instantly, and for almost zero cost, by publishing materials on the Web.
</p>
<p>
Follow me @glynmoody on <a href="http://twitter.com/glynmoody">Twitter</a> or <a href="http://identi.ca/glynmoody">identi.ca</a>, and on <a href="https://plus.google.com/100647702320088380533">Google+</a>
</p><br /><br /><a href="http://www.techdirt.com/articles/20130306/09371522216/public-well-being-must-be-primary-measurement-us-eu-trade-agreement.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130306/09371522216/public-well-being-must-be-primary-measurement-us-eu-trade-agreement.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130306/09371522216/public-well-being-must-be-primary-measurement-us-eu-trade-agreement.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>does-it-have-to-be-said?</slash:department>
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<pubDate>Fri, 1 Mar 2013 14:04:11 PST</pubDate>
<title>USTR To Canada: 'Bow Down And Accept ACTA!' Canada: 'Yes, We Shall Do Your Bidding'</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20130301/12143622173/ustr-to-canada-bow-down-accept-acta-canada-yes-we-shall-do-your-bidding.shtml</link>
<guid>http://www.techdirt.com/articles/20130301/12143622173/ustr-to-canada-bow-down-accept-acta-canada-yes-we-shall-do-your-bidding.shtml</guid>
<description><![CDATA[ The story of ACTA is well-known by now.  ACTA was yet another attempt by copyright and patent maximalists to spread maximalist principles further via a secretive treaty that allowed certain industries to participate in the process, but kept out any and all concerns from public interest groups, the public itself, and innovative industries that would be harmed by the laws.  Thankfully, widespread protests in the EU resulted in ACTA being <a href="http://www.techdirt.com/articles/20121219/15502521443/eu-officially-pronounces-acta-dead-as-commission-withdraws-court-justice-assessment.shtml">declared dead</a> there, as the EU Parliament refused to agree to ACTA.  And, without the EU, it's questionable if ACTA will ever be a <a href="http://www.techdirt.com/articles/20120913/10410120375/will-acta-ever-be-real-treaty.shtml">real</a> treaty in any way that matters.  Yes, some countries have signed it, but there are still some ratification processes necessary, and without the EU on board, the whole thing seems kind of pointless.  Other negotiating countries, including Switzerland, Australia and Mexico have indicated that they are not fans of ACTA either.
<br /><br />
Many assumed, therefore, that ACTA was dead.  But... not the US apparently.  Nor Canada.  In an announcement today, the USTR is apparently acting as if the months of ACTA protests and the death of ACTA in Europe didn't happen.  Instead, it's all about <a href="http://infojustice.org/archives/28791" target="_blank">pressuring countries like Canada</a> by claiming that they need "to meet its Anti-Counterfeiting Trade Agreement obligations."  Seriously, now?
<br /><br />
Now, if I'm a Canadian politician, this is the point where I tell the USTR to go pound sand and to recognize that the world has clearly rejected the concept of ACTA, and having just gone through a long and arduous copyright reform process (also mainly because of US demands from the likes of the USTR), that the USTR should go pick on some other country to bully.
<br /><br />
Instead, however, we get near complete capitulation.  With near perfect timing, a bill has been introduced in the Canadian Parliament <a href="http://www.michaelgeist.ca/content/view/6796/125/" target="_blank">to bring Canadian IP law into line with ACTA</a>.  Why would they even bother?
<blockquote><i>
The core elements of the bill include the increased criminalization of copyright and trademark law as well as the introduction of new powers for Canadian border guards to detain shipments and work actively with rights holders to seize and destroy goods without court oversight or involvement.
</i></blockquote>
It's really amazing that they're willing to open this can of worms, given just how strongly people fought back against ACTA elsewhere.  Michael Geist has a good initial analysis of the bill at the link above, and will likely follow up to call out some more specifics in the 52 pages of changes to copyright and trademark law, but just the fact that Canada is bothering to move forward on this is troubling. It shows a Canadian government who doesn't seem to care about what the public wants, but rather feels the need to kowtow to US entertainment and pharmaceutical lobbying interests.
<blockquote><i>
 The
first is that this bill provides a clear signal that Canada will
move forward with ACTA notwithstanding some doubts over whether
there is even sufficient global support to allow it to take effect
(six ratifications are needed). ACTA is toxic in Europe, where
officials now go out of their way to assure the public that ACTA
is dead and that any new agreements will not involve efforts to
revive it. ACTA has also faced serious opposition in other
negotiating countries, including Switzerland (<a href="https://www.ige.ch/en/legal-info/legal-areas/counterfeiting-piracy/acta.html">which

has not signed it</a>), Australia (where a Parliamentary
Committee <a href="http://digital.org.au/content/acta-slammed-australian-parliamentary-committee">recommended</a>
against ratification), and Mexico (where the <a href="http://latimesblogs.latimes.com/world_now/2012/07/mexico-acta-debate-activists-net-privacy-legal-senate.html">Senate

rejected it in 2010</a>). ACTA was promoted as a "gold standard"
agreement on counterfeiting, yet the failure to garner support
from many participants has left an agreement that is often cited
as an example of how not to engage in international
negotiations.&nbsp; Given the global opposition, Canadian support
for ACTA is disappointing.
</i></blockquote>
For many years, Canada has strongly resisted US-style copyright laws, despite tremendous pressure to do so.  Watching them cave on ACTA is certainly a disappointment.  Meanwhile, watching the USTR pretending as if ACTA went forward as planned is simply par for the course, and a reminder of just how completely detached from reality that organization remains.  Elsewhere in the USTR's agenda release today, it mentions working with Japan to bring ACTA into force, which is somewhat laughable, considering how many countries have been rejecting it.<br /><br /><a href="http://www.techdirt.com/articles/20130301/12143622173/ustr-to-canada-bow-down-accept-acta-canada-yes-we-shall-do-your-bidding.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130301/12143622173/ustr-to-canada-bow-down-accept-acta-canada-yes-we-shall-do-your-bidding.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130301/12143622173/ustr-to-canada-bow-down-accept-acta-canada-yes-we-shall-do-your-bidding.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>why?</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20130301/12143622173</wfw:commentRss>
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<item>
<pubDate>Fri, 8 Feb 2013 08:40:56 PST</pubDate>
<title>US And Europe Move On To TAFTA: Yet Another Chance To Push Through ACTA/SOPA Style IP Maximalism</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20130207/08080221909/us-europe-move-to-tafta-yet-another-chance-to-push-through-actasopa-style-ip-maximalism.shtml</link>
<guid>http://www.techdirt.com/articles/20130207/08080221909/us-europe-move-to-tafta-yet-another-chance-to-push-through-actasopa-style-ip-maximalism.shtml</guid>
<description><![CDATA[ ACTA and SOPA may have flopped, but minor setbacks like that won't stop the onslaught of abuses from the entertainment and pharmaceutical industries looking to use the international treaty process to try to pressure everyone to keep ratcheting up protectionist laws concerning copyright, patents and trademarks.  Obviously, we've been talking about the still worrisome <a href="http://www.techdirt.com/blog/?tag=tpp">TPP</a> agreement involving a bunch of Pacific Rim countries, but it's not stopping there.  Back in October, we <a href="http://www.techdirt.com/articles/20121025/01203320820/looking-beyond-tpp-us-eu-planning-more-bad-ip-rules-us-eu-free-trade-agreement.shtml">warned</a> that the US and EU were preparing a new trade agreement as well, and the preliminary plans noted that it would include a "high level of intellectual property protection, including enforcement."
<br /><br />
More details are starting to come out as the main EU negotiator for ACTA, Karel de Gucht, came to DC to <a href="http://acta.ffii.org/?p=1724" target="_blank">see about getting things kicked off</a>, on an agreement that's being called TAFTA -- the Trans Atlantic "Free Trade" Agreement.  Of course, instead of recognizing the lessons from previous failed efforts to push for broken maximalist policies, it appears that the plan is to try, try again.  Some are already saying that this is <a href="http://seenthis.net/messages/106809" target="_blank">"the opportunity to try to set the gold standard"</a> in copyright, patent and trademark protection.  The goal, as with ACTA and TPP is to ratchet up the laws, and then put tons of pressure on China and India to "respect" those laws.  To put it mildly: this is stupid.  Both of those countries recognize how protectionism works.  We've already seen that China is becoming exceptionally good at using patent laws to basically <a href="http://www.techdirt.com/articles/20120709/00100219617/chinese-companies-again-using-patents-to-punish-foreign-competitors-apple-sued-over-siri-shanghai.shtml">punish foreign companies</a>, while helping domestic Chinese companies.  It seems downright idiotic to provide them with even more tools to do so. 
<br /><br />
Of course, the real questions are why do we keep letting our governments negotiate these kinds of deals, and why do we let them do so in secret?<br /><br /><a href="http://www.techdirt.com/articles/20130207/08080221909/us-europe-move-to-tafta-yet-another-chance-to-push-through-actasopa-style-ip-maximalism.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130207/08080221909/us-europe-move-to-tafta-yet-another-chance-to-push-through-actasopa-style-ip-maximalism.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130207/08080221909/us-europe-move-to-tafta-yet-another-chance-to-push-through-actasopa-style-ip-maximalism.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>it-never-ends</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20130207/08080221909</wfw:commentRss>
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<item>
<pubDate>Thu, 17 Jan 2013 05:07:00 PST</pubDate>
<title>Learning From Aaron Swartz: Content Must Not Be The End Game For Knowledge</title>
<dc:creator>Glyn Moody</dc:creator>
<link>http://www.techdirt.com/articles/20130115/09211121690/learning-aaron-swartz-content-must-not-be-end-game-knowledge.shtml</link>
<guid>http://www.techdirt.com/articles/20130115/09211121690/learning-aaron-swartz-content-must-not-be-end-game-knowledge.shtml</guid>
<description><![CDATA[ <p>In the wake of the suicide of Aaron Swartz, there have been many fine tributes to the man and his work.  Another growing class of posts that have flowed from this unhappy event are people reflecting on the important lessons he taught them.  Here, for instance, is Jeff Jarvis recounting <a href="http://buzzmachine.com/2013/01/12/learning-the-true-value-of-content-from-aaron-swartz/">his journey from a fairly traditional position on copyright to one that recognized how the Internet had reshaped that landscape</a>.
</p><p>
Ten years ago, Jarvis appended this "mock copyright notice" to his blog posts:

<i><blockquote>It's mine, I tell you, mine! All mine! You can't have it because it's mine! You can read it (please); you can quote it (thanks); but I still own it because its mine! I own it and you don't. Nya-nya-nya. So there. COPYRIGHT ... by Jeff Jarvis.</blockquote></i>

But gradually, under the influence of key thinkers in this area, he came to see things differently:

<i><blockquote>Lessig and company have taught me that content's value can lie in what it spawns and inspires. Locked away, unseen, unused, not discussed, not linked, it might as well not exist.
<br /><br />
...
<br /><br />
And Aaron Swartz has taught me that content must not be the end game for knowledge. Why does knowledge become an article in a journal -- or that which fills a book or a publication -- except for people to use it? And only when they use it does content become the tool it should be. Not using knowledge is an offense to it. If it cannot fly free beyond the confines of content, knowledge cannot reach its full value through collaboration, correction, inspiration, and use.</blockquote></i>

The tension between knowledge and content is no mere abstraction.  As well as lying behind some of the most problematic sections of SOPA, ACTA and TPP, and the larger war on digital sharing they are part of, it was almost certainly a contributory factor in the death of Aaron Swartz too.
</p><p>
Follow me @glynmoody on <a href="http://twitter.com/glynmoody">Twitter</a> or <a href="http://identi.ca/glynmoody">identi.ca</a>, and on <a href="https://plus.google.com/100647702320088380533">Google+</a></p><br /><br /><a href="http://www.techdirt.com/articles/20130115/09211121690/learning-aaron-swartz-content-must-not-be-end-game-knowledge.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130115/09211121690/learning-aaron-swartz-content-must-not-be-end-game-knowledge.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130115/09211121690/learning-aaron-swartz-content-must-not-be-end-game-knowledge.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>serious-stuff</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20130115/09211121690</wfw:commentRss>
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<pubDate>Thu, 10 Jan 2013 16:37:27 PST</pubDate>
<title>White House Refuses To Be Transparent About Positions On Transparency</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20130110/13445621632/white-house-refuses-to-be-transparent-about-positions-transparency.shtml</link>
<guid>http://www.techdirt.com/articles/20130110/13445621632/white-house-refuses-to-be-transparent-about-positions-transparency.shtml</guid>
<description><![CDATA[ As we well know, despite promises from the Obama administration that it would be "the most transparent" in history, it has been anything but that over its first four years.  The US Trade Rep (USTR) has been particularly bad on this front, especially when it comes to trade agreements that will have a massive impact on the public, such as ACTA and TPP.  No matter how many times they were asked by the public, by Congress and by other countries, the USTR kept insisting that it had to keep things secret because... well... just because.  There were some excuses made about how they don't "negotiate in public" or about how "this is how it's always been done," but those don't make any sense when you look at the details.  It became especially silly in the ACTA negotiations, late in the process, when many of the countries involved indicated that they wished things were more transparent and many pointed their fingers at the US as being the one country that kept things secret.  Also, we know that other international agreements are done in a much more transparent fashion.
<br /><br />
The folks at KEI filed a Freedom of Information Act request for documents relating to the US's position on transparency regarding a particular ACTA meeting, as well as documents the US had on the positions of other countries.  FOIA requests are supposed to be fulfilled within <i>20 business days</i> from the time they're received.  In practice, this time frame is almost <i>never</i> met, though sometimes for good reasons (it takes a while to do some of the searches).  However, in this case, it took <b>two and a half years</b> for the White House to finally respond, and when it did, the response <a href="http://keionline.org/node/1636" target="_blank">was that, while 16 relevant documents were found, it wouldn't release them</a>, because <a href="http://www.urbandictionary.com/define.php?term=I%20want%20this%20because%20of%20reasons" target="_blank">of reasons</a>.
<br /><br />
More specifically:
<blockquote><i>
With regard to the second category, we identified sixteen (16) pages of
responsive records. We have determined that all 16 pages of responsive records are exempt from
disclosure under the deliberative process prong of section of the FOIA. The deliberative
process privilege protects the decision making processes of government agencies by encouraging
open and frank discussions on policy matters among subordinates and superiors. These records
contain predecisional discussions regarding negotiating positions and their implications on future
negotiations. Moreover, these documents contain policy recommendations and opinions shared
between subordinates and superiors.
</i></blockquote>
Think about this for a second.  This is a request to be transparent about positions on <i>transparency</i>, and they're being rejected because it may show discussions about transparency.  Really.  The fact that these discussions "may contain open and frank discussions on policy matters" shouldn't be a huge concern.  The ACTA negotiations are done at this point, and it should be easy enough to redact other issues that might impact future policy efforts.  It seems ridiculous to suggest that discussions on whether or not the US should be transparent are, themselves, not subject to transparency.<br /><br /><a href="http://www.techdirt.com/articles/20130110/13445621632/white-house-refuses-to-be-transparent-about-positions-transparency.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130110/13445621632/white-house-refuses-to-be-transparent-about-positions-transparency.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130110/13445621632/white-house-refuses-to-be-transparent-about-positions-transparency.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>not-transparent-about-transparency</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20130110/13445621632</wfw:commentRss>
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<pubDate>Thu, 27 Dec 2012 00:16:04 PST</pubDate>
<title>Treaty Shopping: How Companies Tilt The Legal Playing Field For Investor-State Arbitration</title>
<dc:creator>Glyn Moody</dc:creator>
<link>http://www.techdirt.com/articles/20121226/09522221488/treaty-shopping-how-companies-tilt-legal-playing-field-investor-state-arbitration.shtml</link>
<guid>http://www.techdirt.com/articles/20121226/09522221488/treaty-shopping-how-companies-tilt-legal-playing-field-investor-state-arbitration.shtml</guid>
<description><![CDATA[ <p>Alongside globe-spanning treaties like ACTA and TPP, there are more subtle efforts to limit the power of national governments, through the use of free trade agreements (FTAs) and bilateral investment treaties (BITs).  There are now so many of these that it's hard to keep up, although <a href="http://www.bilaterals.org/">the dedicated site bilaterals.org is a great help</a> here. The confusing multiplicity only adds to their attractiveness for those negotiating them behind close doors, keen as they are to avoid transparency as much as possible.
</p><p>
One key issue for both FTAs and BITs concerns investor-state arbitration procedures that allow companies, typically powerful global corporations, to take entire nations to court over actions that allegedly cause the company harm -- for example, by introducing stricter environmental legislation that requires additional expenditure at manufacturing plants.  The trailblazer in taking advantage of these provisions is the tobacco giant Phillip Morris.  <a href="http://latino.foxnews.com/latino/health/2010/11/22/uruguay-takes-tobacco-giant-philip-morris/">Here's what it did in Uruguay, back in 2010</a>:

<i><blockquote>The tobacco giant is suing Uruguay, alleging the country is violating Switzerland&#8217;s trade agreement by requiring that anti-smoking warnings cover 80 percent of cigarette packages. If World Bank arbitrators agree, Uruguay could be forced to pay the company millions of dollars.
<br /><br />
But Uruguay -- whose Gross Domestic Product is $44 billion -- refuses to back down from Philip Morris, whose market capitalization equals $108 billion. And now the country is getting backing all across the world in its fight against tobacco.</blockquote></i>
</p><p>
It's also <a href="http://www.ag.gov.au/Internationalrelations/InternationalLaw/Pages/Tobaccoplainpackaging.aspx">suing Australia for similar reasons</a>:

<i><blockquote>On 1 December 2011 the Tobacco Plain Packaging Act 2011 received Royal Assent and became law in Australia.
<br /><br />
The Act forms part of a comprehensive Australian Government strategy to reduce the rate of smoking in Australia. Smoking is one of the leading causes of preventable death and disease in Australia.
<br /><br />
Philip Morris Asia is challenging the plain packaging legislation under the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments. On 21 December 2011, the Australian Government provided its response to Philip Morris Asia's Notice of Arbitration.</blockquote></i>

A  fascinating article on the infojustice.org site from a few weeks ago explains <a href="http://infojustice.org/archives/28044">the strategy of the tobacco giant</a> here:

<i><blockquote>So why didn't this American company go through the [the main US-Australia FTA]? Because that treaty (1) does not guarantee investor-state dispute, and (2) provides for exemptions to expropriation obligations for limitations on intellectual property rights. Phillip-Morris faced a greater likelihood of failure under the US treaty.
<br /><br />
The Hong Kong BIT is also a particularly good choice for Phillip-Morris because, unlike other treaties, it does not include prohibition on claims brought by investors owned by citizens or entities of countries not party to applicable treaty. For example, the BIT with the Czech Republic states:

<blockquote>Article 2(2): Where a company of a Contracting Party is owned or controlled by a citizen or a company of any third country, the Contracting Parties may decide jointly in consultation not to extend the rights and benefits of this Agreement to such company.</blockquote>

Had the Hong Kong BIT contained this language, Australia could have stopped Phillip Morris International from going through their Asian subsidiary in bringing this claim.</blockquote></i>

Phillip Morris is engaging in "treaty shopping" -- choosing to invoke those FTAs or BITs that contain terms most favorable to its legal action, whether or not they are the most logical or relevant to the dispute in question.  That's possible because of the multiplication of these treaties, often with slightly different wording that allows the tobacco company to cherry-pick in this way.  As well as deploying it against Australia, Phillip Morris is using the same approach in its fight against Uruguay by invoking the bilateral investment treaty between that country and Switzerland, not the US.
</p><p>
This underlines why it is crucially important for nations to get the wording of investor-state arbitration procedures right when negotiating FTAs, BITs and multilateral treaties like TPP. If they don't, they may well find that global corporations will exploit favorable clauses through the kind of treaty shopping practised by Phillip Morris to put countries at a disadvantage when arguing before international tribunals.
</p><p>
Follow me @glynmoody on <a href="http://twitter.com/glynmoody">Twitter</a> or <a href="http://identi.ca/glynmoody">identi.ca</a>, and on <a href="https://plus.google.com/100647702320088380533">Google+</a></p><br /><br /><a href="http://www.techdirt.com/articles/20121226/09522221488/treaty-shopping-how-companies-tilt-legal-playing-field-investor-state-arbitration.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20121226/09522221488/treaty-shopping-how-companies-tilt-legal-playing-field-investor-state-arbitration.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20121226/09522221488/treaty-shopping-how-companies-tilt-legal-playing-field-investor-state-arbitration.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>hard-to-keep-up</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20121226/09522221488</wfw:commentRss>
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<pubDate>Thu, 20 Dec 2012 00:02:37 PST</pubDate>
<title>EU Officially Pronounces ACTA Dead As Commission Withdraws Court Of Justice Assessment</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20121219/15502521443/eu-officially-pronounces-acta-dead-as-commission-withdraws-court-justice-assessment.shtml</link>
<guid>http://www.techdirt.com/articles/20121219/15502521443/eu-officially-pronounces-acta-dead-as-commission-withdraws-court-justice-assessment.shtml</guid>
<description><![CDATA[ In case you weren't sure yet, ACTA is now pretty officially dead in the EU.  While it was mostly dead back in July, when the EU Parliament vociferously <a href="http://www.techdirt.com/articles/20120704/07533019579/european-parliament-declares-its-independence-european-commission-with-massive-rejection-acta-now-what.shtml">rejected</a> ACTA, the EU Commission, who had helped negotiate the treaty, still held out hope that it would be vindicated by the EU Court of Justice.  As you may recall, to try to appease those arguing against ACTA, the EU commissioner with responsibility for the treaty, Karel De Gucht, had submitted the agreement to the EU Court of Justice for a determination on whether or not it really went against EU laws, and he had insisted that even with the Parliament's rejection that he would <a href="http://www.techdirt.com/articles/20120625/12333619468/eu-commissioner-reveals-he-will-simply-ignore-any-rejection-acta-european-parliament-next-week.shtml">push forward</a> with that case.
<br /><br />
Except... months later, the EU Commission has quietly <a href="http://en.europeonline-magazine.eu/eu-reportedly-gives-up-on-anti-counterfeit-treaty_255737.html" target="_blank">dropped its request for the EU Court of Justice to weigh in</a>, more or less putting that final nail in the coffin for ACTA in the EU.  It's about a year late, but it appears that the EU Commission has finally realized that ACTA was a mistake for Europe.<br /><br /><a href="http://www.techdirt.com/articles/20121219/15502521443/eu-officially-pronounces-acta-dead-as-commission-withdraws-court-justice-assessment.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20121219/15502521443/eu-officially-pronounces-acta-dead-as-commission-withdraws-court-justice-assessment.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20121219/15502521443/eu-officially-pronounces-acta-dead-as-commission-withdraws-court-justice-assessment.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>pining-for-the-fjords</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20121219/15502521443</wfw:commentRss>
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<pubDate>Mon, 3 Dec 2012 10:58:39 PST</pubDate>
<title>Doubling Down On Secrecy: ITU Believes Secret Media Strategy Key To Avoiding SOPA/ACTA Fate</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20121201/01525121195/doubling-down-secrecy-itu-believes-secret-media-strategy-key-to-avoiding-sopaacta-fate.shtml</link>
<guid>http://www.techdirt.com/articles/20121201/01525121195/doubling-down-secrecy-itu-believes-secret-media-strategy-key-to-avoiding-sopaacta-fate.shtml</guid>
<description><![CDATA[ As the WCIT (World Conference on International Telecommunications) gets under way in Dubai, the ITU is making its play to <a href="http://www.techdirt.com/articles/20121107/21233320970/itu-boss-explains-why-he-wants-un-to-start-regulating-internet.shtml">regulate the internet</a>, potentially to <a href="http://www.techdirt.com/articles/20121119/02003321088/russia-demands-internet-takeover-un-then-retracts-it.shtml">aid authoritarian governments</a> in censoring or limiting the internet, or to divert money from innovative internet companies <a href="http://www.techdirt.com/articles/20120907/11061720310/eu-telcos-to-un-regulators-divert-more-money-our-way-no-ones-internet-gets-hurt.shtml">to stagnant state telcos</a> out of a claim of "fairness."  There's obviously been a lot of talk about it, and the ITU keeps claiming that it's just a neutral body to facilitate discussions, even as increasing evidence suggests it's urging many of the crazier proposals forward itself.
<br /><br />
And now it's come out that ITU officials recently held a "secret" meeting to figure out <a href="http://www.forbes.com/sites/larrydownes/2012/11/26/un-agencys-leaked-playbook-panic-chaos-over-internet-treaty/" target="_blank">how they were going to avoid getting SOPA'd</a>, having the world rise up in protest as it tries to implement its internet regulatory regime.  Following some bizarre and paranoid fantasy about how the anti-ITU, anti-WCIT efforts are really just because an unnamed "lobbying group" didn't like one proposal (the one mentioned above about diverting money from internet companies to telcos), the meeting got down to business: how could they use social media to prevent SOPA- or ACTA-like uprisings from the public:
<blockquote><i>
In response to the anti-WCIT &#8220;campaign,&#8221; according to the September retreat&#8217;s preparatory materials, the ITU reluctantly launched a &#8220;counter-campaign,&#8221; which the agency believes &#8220;has been fairly successful outside the US and somewhat successful even in the US,&#8221; where &#8220;some of the statements made to denigrate ITU and WCIT are so extreme that they were easy to challenge and rebut.&#8221;
<br /><br />
Going forward, the ITU focused at its meeting on the possibility of an &#8220;intensive anti-ratification campaign in OECD countries, based on the so-called lack of openness of the WCIT process, resulting in a significant number of countries refusing to ratify the new ITRs.&#8221;  The ITU calls this possibility &#8220;the so-called ACTA scenario,&#8221; referring to sometimes violent protests against the secret ACTA treaty that took place this year.
<br /><br />
To develop the next phase of its &#8220;counter-campaign,&#8221; the ITU hosted speakers from leading PR and advertising agencies to advise them on the use of social media.  For example, Matthias Lufkens, Head of Digital Strategy for global public relations firm Burson-Marsteller, gave a presentation on how his agency helped the World Economic Forum leverage tools such as Facebook, Twitter, and Flickr to fend off &#8220;occupy&#8221;-style protests that occurred both physically in Davos and on the Internet.
<br /><br />
&#8220;There is a risk that [the ACTA scenario] will happen, but our communication campaign can mitigate this,&#8221; the internal document says.
</i></blockquote>
Of course, the campaign doesn't really appear to be going that well -- especially since so much of it revolves around "deflect[ing] media questions from secrecy, taxes and censorship" to the blandly empty (and absolutely silly) statement that "the revised ITRs have the exciting potential to pave the way for a broadband revolution in the 21st century."  I'm sure that sounds catchy on a tweet.  The problem, of course, is that folks on the internet don't tend to believe that kind of bureaucrat-speak when they know it's not true.  As Downes notes:
<blockquote><i>
Here&#8217;s the unvarnished truth, which no PR agency can help the agency talk, tweet, or prevaricate their way around:  The commercial Internet emerged and matured entirely since the treaty was last reviewed.  It developed in spite of the ITRs, not because of them.
<br /><br />
There is a familiar pattern here of ambitious regulators who have no expertise and little experience with the Internet proclaiming themselves its benevolent dictators, only to find the peasants revolting before the coup has even started.
<br /><br />
The ITU is no different than the sponsors of ACTA, SOPA, PIPA, and other attempts at regulating the Internet, its content, or its users by governments large and small.  Like the media lobbyists who continue to see the successful fight to kill SOPA and PIPA as a proxy war waged solely by Google and other Internet companies, the ITU simply can&#8217;t accept the reality that Internet users have become their own best advocates.
</i></blockquote>
Once again, these bureaucrats really have no clue what they're doing.<br /><br /><a href="http://www.techdirt.com/articles/20121201/01525121195/doubling-down-secrecy-itu-believes-secret-media-strategy-key-to-avoiding-sopaacta-fate.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20121201/01525121195/doubling-down-secrecy-itu-believes-secret-media-strategy-key-to-avoiding-sopaacta-fate.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20121201/01525121195/doubling-down-secrecy-itu-believes-secret-media-strategy-key-to-avoiding-sopaacta-fate.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>good-luck-with-that</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20121201/01525121195</wfw:commentRss>
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<item>
<pubDate>Wed, 21 Nov 2012 00:14:00 PST</pubDate>
<title>Why Was It Poland That Led The European Revolt Against ACTA?</title>
<dc:creator>Glyn Moody</dc:creator>
<link>http://www.techdirt.com/articles/20121119/08583721092/why-was-it-poland-that-led-european-revolt-against-acta.shtml</link>
<guid>http://www.techdirt.com/articles/20121119/08583721092/why-was-it-poland-that-led-european-revolt-against-acta.shtml</guid>
<description><![CDATA[ <p>In retrospect, it is now clear that the pivotal moment in the campaign against ACTA was last January, when thousands of people took to the streets in <a href="https://www.techdirt.com/articles/20120126/03543117549/people-poland-come-out-to-protest-acta-large-numbers-polish-govt-calls-it-blackmail.shtml">Poland</a> despite the sub-zero temperatures there.  A few weeks later, similar protests took place across the continent, especially in Eastern Europe, which then influenced <a href="https://www.techdirt.com/articles/20120621/03442219413/fifth-eu-committee-recommends-rejection-acta-european-parliament.shtml">politicians</a> at all levels, culminating in the <a href="https://www.techdirt.com/articles/20120704/07533019579/european-parliament-declares-its-independence-european-commission-with-massive-rejection-acta-now-what.shtml">rejection<a /> of ACTA by the European Parliament on July 4.
</a></p><p>
Although the <a href="https://www.techdirt.com/articles/20120118/12072517457/gallery-sopa-blackout-protest-screens.shtml">SOPA Blackout</a> day was one inspiration for the European street protests, a key question is: why did they happen first in Poland?  Krzysztof Kietzman points us to an interesting piece of research, newly available in English as "<a href="http://obiegikultury.centrumcyfrowe.pl/en/">The Circulations of Culture.
 On Social Distribution of Content</a>," that goes some way to offering an answer. Here's the summary:

<i><blockquote>It describes how books, music, and movies circulate among Poles who sometimes buy them, but more often than not acquire them via the Internet and borrow or copy them from friends.</blockquote></i>

Interestingly, according to the publication's introduction, the document itself played a role in the ACTA debate when it first appeared (in Polish) in January 2012:

<i><blockquote>The publication took place at the height of the debate on ACTA and became an important element in public debates on
 copyright and regulation of online circulations of content.</blockquote></i>

One reason why it may have provoked discussion is because of the terminology it uses:

<i><blockquote>this is not a report about "pirates" that conduct illegal activities, but rather about people who engage in informal content sharing practices.</blockquote></i>

As the report's authors explain:

<i><blockquote>abandoning the simple legal-illegal binary has yet another reason. The goal of this report is to foster real dialogue on the issue of acquiring cultural content in Poland. The overuse of labels such as "piracy" or "theft" will not improve the chances of establishing such dialogue. An opposition between "formal" and "informal" is in our opinion a much better way for framing this debate.
</blockquote></i>

Here are some of the key findings:

<i><blockquote>62% of Poles do not participate in either the formal or the informal circulations of cultural content. The primary form of cultural activity for most Poles is probably watching television and listening to the radio.</blockquote></i>

Things are even worse when it comes to buying stuff:

<i><blockquote>13% of Poles purchase content, as opposed to 33% that obtain it through informal, digital circulations. Only 13% of Poles have purchased a book, a movie, or a musical recording in the year before the survey. On the other hand, one third of Poles are engaged in the informal sphere understood here as sharing books, music, and movies in digital formats via the Internet.</blockquote></i>

This indicates how important the informal circulation is in terms of sustaining culture in Poland.  A key discovery is that informal and formal patterns of acquisition are not mutually exclusive:

<i><blockquote>The survey did not corroborate the thesis about informal circulations supplanting the formal ones. The people who most actively engage in the informal content circulations (i.e. Internet users who download files) constitute the largest segment of the purchasers. They comprise 32% of all people purchasing books, 31% of all people purchasing movies, and over half of all people who buy music. They also make up the largest segment of people who lend each other content. People from that group probably treat both informal and formal circulations as complementary.</blockquote></i>

Of course, this is precisely what a number of <a href="https://www.techdirt.com/articles/20121016/15321720721/yet-again-file-sharing-correlated-to-biggest-buyers.shtml">other studies</a> have found, so it's no surprise to see it confirmed here. 
</p><p>
The following statistics go some way to explaining why so many Poles took to the streets in sub-zero temperatures to protests against ACTA:

<i><blockquote>92% of active [Internet] users claim to have engaged in informal circulations if their definition is expanded to include all avenues of content access (such as streaming, sharing files with friends, etc.). If we include the informal circulation of content stored on physical media (e.g. sharing and copying books or CDs and DVDs) in the aforementioned definition, then practically all of the respondents (95%) claim to have engaged in such content circulations. The survey indicates, that among people who actively use the Internet, the informal, non-market economy of cultural content is the norm.</blockquote></i>

The cultural importance of this shared content emerges from another figure:

<i><blockquote>The most commonplace attitude of active Internet users (50% of respondents) towards the informal circulations is moderate and focused on the broadening of cultural horizons. For them, the crucial factor is the ability to know more and see more, not acquire free content.</blockquote></i>

That's not to say that money isn't a factor:

<i><blockquote>75% of active internet users indicated price and a wider selection of content available on the Internet as justifications for their behavior. Two-thirds of them pointed to such factors as availability without delays (typical of formal circulations, where global content arrives in Poland often with a delay) or the selection available.</blockquote></i>

That is, much of the sharing that takes place in Poland is as a result of copyright companies failing to make their material available in a timely fashion, or pricing it inappropriately for the market there. Again, this is just what other research has found, notably the "Media Piracy in Emerging Economies" that Techdirt <a href="https://www.techdirt.com/articles/20110308/02354213395/massive-research-report-piracy-emerging-economies-released-debunks-entire-foundation-us-foreign-ip-policy.shtml">reported</a> on before.
</p><p>
That work was led by Joe Karaganis, and in a kind of postword to the present research, he offers perhaps the best analysis of why it was Poland, and the other former Soviet bloc countries, that led the ACTA revolt:

<i><blockquote>most visible was the demand for transparency and democratic accountability in policymaking -- a demand juxtaposed to the secretive construction and potentially far-ranging obligations of the Agreement. Anti-ACTA sentiment became a channel, in this 
respect, for dissatisfaction with the wider democratic deficits of European governance.
<br /><br />
Less explicit, but no less important in my view, was the use of this secretive process to target a prevalent and largely normalized form of access to culture in Eastern Europe -- the copying, sharing, and downloading of media. These are the compensatory strategies that allowed young Poles, especially, to participate in the wider media culture in which they -- and everyone else -- now grow up. It is no
 accident, in this context, that the major anti-ACTA protests and first government rejections of the agreement came from Poland, Slovenia, the Czech Republic, Croatia, Romania, and Bulgaria -- the economic periphery of Europe.</blockquote></i>

That is, young people in these countries were not prepared to give up without a fight wide-ranging access to the kind of culture that had been denied to their parents' generation because of Soviet censorship, and to which they now had access despite their continuing economic disadvantages.  And so they took to the streets.
</p><p>
Follow me @glynmoody on <a href="http://twitter.com/glynmoody">Twitter</a> or <a href="http://identi.ca/glynmoody">identi.ca</a>, and on <a href="https://plus.google.com/100647702320088380533">Google+</a></p><br /><br /><a href="http://www.techdirt.com/articles/20121119/08583721092/why-was-it-poland-that-led-european-revolt-against-acta.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20121119/08583721092/why-was-it-poland-that-led-european-revolt-against-acta.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20121119/08583721092/why-was-it-poland-that-led-european-revolt-against-acta.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>understanding-history</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20121119/08583721092</wfw:commentRss>
</item>
<item>
<pubDate>Wed, 14 Nov 2012 00:01:39 PST</pubDate>
<title>Will Brazil's 'Anti-ACTA' Marco Civil Be Subverted By Copyright Lobbyists At The Last Moment?</title>
<dc:creator>Glyn Moody</dc:creator>
<link>http://www.techdirt.com/articles/20121112/07295821015/will-brazils-anti-acta-marco-civil-be-subverted-copyright-lobbyists-last-moment.shtml</link>
<guid>http://www.techdirt.com/articles/20121112/07295821015/will-brazils-anti-acta-marco-civil-be-subverted-copyright-lobbyists-last-moment.shtml</guid>
<description><![CDATA[ <p>Just over a year ago Techdirt wrote about Brazil's <a href="https://www.techdirt.com/articles/20111004/04402516196/brazil-drafts-anti-acta-civil-rights-based-framework-internet.shtml">Marco Civil</a> -- essentially a civil-rights based framework for the Internet.  At the time, we dubbed it an "anti-ACTA", since it seemed to protect many of the things that ACTA sought to attack.  It all seemed a little too good to be true, and the post concluded by questioning whether it would survive in its present form.
</p><p>
Most of it has, remarkably, but a recent addition to one clause basically guts protection for ISPs and other online intermediaries.  <a href="https://www.eff.org/deeplinks/2012/11/brazilian-internet-bill-threatens-freedom-expression">The EFF has a good explanation of the situation</a>:

<i><blockquote>A concerning last-minute change has chipped away at the Bill's safe harbor provisions regarding copyright infringement. Article 15 of Marco Civil originally provided that ISPs are not responsible for infringing content by Third Parties unless they disobey a specific judicial order to take down said content. However, following a visit by the Minister of Culture to the legislator serving as rapporteur of Marco Civil, the rapporteur introduced a new paragraph into Article 15, saying that the article would not apply in cases of "copyright and neighborhood rights".</blockquote></i>

If passed, this exception would inevitably exert a chilling effect on all Internet activity, as Brazilian ISPs and Web sites removed content perceived to be even vaguely risky.  It will come as no surprise to discover who is behind the move: 

<i><blockquote>As expected, this change is an unenlightened consequence of the content industry lobby. Guilherme Varella, lawyer for the Brazilian Institute for Consumer Defense [IDEC], commented on the changes in this recent law article. He stated that this is the result of a clumsy intervention by the Ministry of Culture following constant pressure by the entertainment industry lobby, especially the Brazilian Association of Reprographic Rights (ABDR), the Brazilian Association of Phonographic Producers (ABPD) and the Motion Picture Association of America (MPAA). Varella reports that the entertainment lobby has been camped outside the Ministry and the Congress for the past few weeks, pressuring the vote on the Bill to be postponed until they get what they want.</blockquote></i>

It's truly extraordinary how once again the copyright industries seem to think they are uniquely entitled to trample on basic rights.  And it's particularly sad to see such a worthwhile effort to frame a basic level of protection for online users not just watered down but actively subverted in this way, precisely when it seemed on the point of coming to fruition.
</p><p>
Follow me @glynmoody on <a href="http://twitter.com/glynmoody">Twitter</a> or <a href="http://identi.ca/glynmoody">identi.ca</a>, and on <a href="https://plus.google.com/100647702320088380533">Google+</a></p><br /><br /><a href="http://www.techdirt.com/articles/20121112/07295821015/will-brazils-anti-acta-marco-civil-be-subverted-copyright-lobbyists-last-moment.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20121112/07295821015/will-brazils-anti-acta-marco-civil-be-subverted-copyright-lobbyists-last-moment.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20121112/07295821015/will-brazils-anti-acta-marco-civil-be-subverted-copyright-lobbyists-last-moment.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>snatching-defeat-from-the-jaws-of-victory</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20121112/07295821015</wfw:commentRss>
</item>
<item>
<pubDate>Tue, 30 Oct 2012 05:04:21 PDT</pubDate>
<title>Looking Beyond TPP: US &#038; EU Planning More Bad IP Rules In 'US-EU Free Trade Agreement'</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20121025/01203320820/looking-beyond-tpp-us-eu-planning-more-bad-ip-rules-us-eu-free-trade-agreement.shtml</link>
<guid>http://www.techdirt.com/articles/20121025/01203320820/looking-beyond-tpp-us-eu-planning-more-bad-ip-rules-us-eu-free-trade-agreement.shtml</guid>
<description><![CDATA[ Just a reminder: when you think you get past an attempt by certain legacy industries to shove through bad laws with questionable international trade agreements, there's always at least one (and probably more) such agreements lurking.  So, from ACTA we went straight into TPP... and following TPP, it looks like the US and the EU are <a href="http://www.cato-at-liberty.org/the-proposed-u-s-eu-fta-the-good-the-bad-and-the-ugly/" target="_blank">already discussing a new US-EU Free Trade Agreement</a> to be worked out soon.  A "working group" to get the process started put out a report about what the agreement would include... and, of course, there will be a section on "intellectual property."  The USTR has made it clear over the past few years that it thinks free trade agreements are the perfect vehicle for intellectual property maximalism.  This makes little sense, since intellectual property is the exact opposite of "free trade."  It's whole purpose is to be a trade barrier and a monopoly.  But...
<blockquote><i>
Both the EU and the United States are committed to a high level of intellectual property protection, including enforcement, and cooperate extensively through the Transatlantic IPR Working Group. Both sides agree that it would not be feasible in negotiations to seek to reconcile across the board differences in the IPR obligations that each typically includes in its comprehensive trade agreements. Before the launch of any negotiations, both sides would further consult on possible approaches to deal with IPR matters in a mutually satisfactory manner.
</i></blockquote>
So, at the very least, there would be some limits on what such an agreement would get into, given existing "differences," but they still seem to want to include something about "dealing with IPR matters," which can only mean ratcheting things up.  It's still early, but you can bet that the legacy industry lobbyists are already well aware of this and involved in the process -- so it needs to be on everyone else's radar as well.
<br /><br />
Oh, and both Obama and Romney have indicated they support such an agreement, so it's not like either one is better than the other going into next year.<br /><br /><a href="http://www.techdirt.com/articles/20121025/01203320820/looking-beyond-tpp-us-eu-planning-more-bad-ip-rules-us-eu-free-trade-agreement.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20121025/01203320820/looking-beyond-tpp-us-eu-planning-more-bad-ip-rules-us-eu-free-trade-agreement.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20121025/01203320820/looking-beyond-tpp-us-eu-planning-more-bad-ip-rules-us-eu-free-trade-agreement.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>it-never-stops</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20121025/01203320820</wfw:commentRss>
</item>
<item>
<pubDate>Tue, 23 Oct 2012 05:08:47 PDT</pubDate>
<title>EU &#038; US Negotiators Looking To Hold Blind &#038; Deaf Access Rights Hostage To Get A New ACTA/SOPA</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20121020/23344420778/eu-us-negotiators-looking-to-hold-blind-deaf-access-rights-hostage-to-get-new-actasopa.shtml</link>
<guid>http://www.techdirt.com/articles/20121020/23344420778/eu-us-negotiators-looking-to-hold-blind-deaf-access-rights-hostage-to-get-new-actasopa.shtml</guid>
<description><![CDATA[ We already talked about how US officials have been <a href="http://www.techdirt.com/articles/20121018/02104720747/us-steadfast-its-stand-publishers-against-disabled.shtml">working against</a> a treaty to allow more access to copyrighted works for the disabled, but the latest report from Jamie Love highlights an even more nefarious part of the strategy.  To hold the agreement <a href="http://keionline.org/node/1571" target="_blank">hostage in order to backdoor in certain elements of ACTA/SOPA</a>.  This is mainly being led by the EU, but with support from the US.  And the main part is putting lots of red tape around any exceptions -- and tying it to more standardized enforcement, which is what ACTA was really all about:
<blockquote><i>
The European Union primarily, but with some backing from the US government, is holding blind people's access hostage in and effort to introduce new global enforcement norms for copyright. If you look at most copyright exceptions in most countries, the system works as follows. If the exception applies, an activity is not considered infringement. If you do something that is not protected by the exception, you are infringing, and all sorts of bad things can happen, depending upon your national laws for infringement, which include both criminal and civil sanctions. That is how the US exceptions work for blind persons, and that's how nearly all national exceptions work for blind persons. But here at WIPO, the EU wants page after page of detailed regulation of anyone who uses an exception. The expanding verbiage of the agreement is almost entirely about introducing ACTA and SOPA like enforcement provisions into this agreement.
</i></blockquote>
We've already seen the EU try to <a href="http://www.techdirt.com/articles/20121011/01370920676/course-ridiculous-acta-provisions-magically-appear-ceta.shtml">backdoor</a> ACTA provisions in elsewhere, so it should come as little surprise that it would also seek to abuse a treaty to help the disabled to get to the same point as well.  Shameful, but not surprising.
<br /><br />
Another report on the meetings, from David Hammerstein at the TransAtlantic Consumer Dialogue (TACD) <a href="http://tacd-ip.org/archives/788" target="_blank">goes into more detail</a> on the EU's moves during the negotiations:
<blockquote><i>
Instead of trying to help one of the worldÂ´s most culturally disadvantaged groups the EUÂ´s copyright specialists guided by Commissioner of Internal Market Michel Barnier are busy launching violent preemptive strikes against the possibility of a clear, exception to copyright for the non-profit production and distribution of works formatted for visually impaired persons.
<br /><br />
In Geneva this week the EU made one negative proposal after another to block a global agreement that would greatly improve access to culture for the visually impaired.  All of them have been rejected by the organizations defending blind and disabled persons rights. Most of them are &#8220;copy and paste&#8221; proposals from the publishing industryÂ´s wish list. Not one EU proposal this week in Geneva was to facilitate the right to read of disabled persons as guaranteed by international law. Not one member of the EUÂ´s delegation was a human rights or disability expert; all were hard-line copyright apologists.
</i></blockquote>
Basically, they seem to see this as a war, where any exception is seen as "giving in" on copyright.  This is insane.  This is not about rational minds looking for the proper calibration of the law, or understanding the real impacts of the law.  This appears to be about pure copyright religion, where "more" must be better, and any exception, no matter how reasonable, is seen as a sin.  Shameful.<br /><br /><a href="http://www.techdirt.com/articles/20121020/23344420778/eu-us-negotiators-looking-to-hold-blind-deaf-access-rights-hostage-to-get-new-actasopa.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20121020/23344420778/eu-us-negotiators-looking-to-hold-blind-deaf-access-rights-hostage-to-get-new-actasopa.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20121020/23344420778/eu-us-negotiators-looking-to-hold-blind-deaf-access-rights-hostage-to-get-new-actasopa.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>sad</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20121020/23344420778</wfw:commentRss>
</item>
<item>
<pubDate>Fri, 12 Oct 2012 03:15:30 PDT</pubDate>
<title>But Of Course: Ridiculous ACTA Provisions Magically Appear In CETA</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20121011/01370920676/course-ridiculous-acta-provisions-magically-appear-ceta.shtml</link>
<guid>http://www.techdirt.com/articles/20121011/01370920676/course-ridiculous-acta-provisions-magically-appear-ceta.shtml</guid>
<description><![CDATA[ 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 <a href="http://www.techdirt.com/articles/20120709/07420719630/actas-back-european-commission-trying-to-sneak-worst-parts-using-canada-eu-trade-agreement-as-trojan-horse.shtml">written into CETA</a>, a similar agreement between Canada and Europe.  EU officials claimed they were <a href="http://www.techdirt.com/articles/20120711/13585019665/ceta-is-now-slightly-less-like-acta-still-similar-still-secret.shtml">removing</a> the most controversial provisions -- but now it's been confirmed that <a href="http://www.laquadrature.net/node/6090" target="_blank">the ridiculously misguided criminal sanctions</a>... 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.
<blockquote><i>
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.
</i></blockquote>
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:
<blockquote><i>
&#8220;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.&#8221;
</i></blockquote>
It needs to stop, but people don't realize how entrenched that process is, which is a big part of the problem.<br /><br /><a href="http://www.techdirt.com/articles/20121011/01370920676/course-ridiculous-acta-provisions-magically-appear-ceta.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20121011/01370920676/course-ridiculous-acta-provisions-magically-appear-ceta.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20121011/01370920676/course-ridiculous-acta-provisions-magically-appear-ceta.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>try,-try-again</slash:department>
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</item>
<item>
<pubDate>Fri, 14 Sep 2012 11:04:00 PDT</pubDate>
<title>Will ACTA Ever Be A Real Treaty?</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20120913/10410120375/will-acta-ever-be-real-treaty.shtml</link>
<guid>http://www.techdirt.com/articles/20120913/10410120375/will-acta-ever-be-real-treaty.shtml</guid>
<description><![CDATA[ With the EU Parliament <a href="http://www.techdirt.com/articles/20120704/07533019579/european-parliament-declares-its-independence-european-commission-with-massive-rejection-acta-now-what.shtml">rejecting ACTA</a> over the summer, and the Japanese legislature doing a <a href="http://www.techdirt.com/articles/20120906/02341020292/japan-rams-acta-through-ratifies-it-while-avoiding-debate.shtml">drive-by ratification</a>, there are some legitimate questions as to whether or not <a href="http://www.ip-watch.org/2012/09/13/acta-will-it-ever-become-a-valid-international-treaty/?utm_source=twitterfeed&#038;utm_medium=twitter&#038;utm_campaign=Feed%3A ip-watch %28Intellectual Property Watch%29" target="_blank">ACTA will ever become a real, valid international treaty</a>.  Without the EU's support, it's a hell of a lot less likely, certainly.  I'd been joking that it was beginning to look like it's going to become an agreement between the US... and Morocco, but the actual process to make ACTA official requires six participants to have "ratified" it.  While a bunch of countries have signed, that's still a step short of ratification.  And, to date, only Japan has done so (though there are arguments over whether or not the US needs Congressional approval for ratification).  Monika Ermert, over at IP-Watch, details the current situation.  Here's a snippet:
<blockquote><i>
With an apparent stalemate between the US administration and legislators about ratification procedures and the European Union out after the Parliament voted against the agreement, it looks as if there is still an uphill battle to get to reach that number.
<br /><br />
Besides the EU and Japan, seven governments have signed ACTA (Australia, Canada, Morocco, New Zealand, Singapore, South Korea and the United States). Switzerland has not signed nor ratified.
<br /><br />
&#8220;Not much is happening on the Canadian front,&#8221; wrote Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa and long-time ACTA observer. &#8220;Canada signed ACTA, but has not ratified. Ratification would likely require some legislative amendments,&#8221; Geist said, and until those changes are introduced the country would not be positioned to ratify. There may be, according to Geist, linkage between ACTA and CETA (the Canada-EU Trade Agreement) under negotiation.
<br /><br />
Britton Broun, media advisor of the Economic Group in the Ministry of Business, Innovation and Employment of New Zealand, responded to Intellectual Property Watch by saying: &#8220;While New Zealand has signed ACTA, the government has not yet taken a decision on its ratification.&#8221;
</i></blockquote> 
As we've discussed, Australia's Parliament has already recommended <a href="http://www.techdirt.com/articles/20120628/01500619519/another-one-bites-dust-australian-parliament-committee-recommends-rejecting-acta.shtml">rejecting</a> ACTA, and it appears that ratification has stalled out there as well.  Ermert suggests that really the only way that ACTA might reach the necessary levels of ratification will be if other countries follow Japan's method of approval -- by which they effectively sneak it through.
<br /><br />
Along those lines, her report confirms what we'd heard about how the ruling party in Japan effectively got ratification without actually bothering to allow the opposition to take part:
<blockquote><i>
But on 31 August, a committee of the House of Representatives, and on 6 September, the full House of Representatives pushed ACTA through, each time counting only the votes of the ruling party.
<br /><br />
&#8220;To ratify an international treaty without the attendance of all opposition parties means a collapse of democracy in Japan,&#8221; warned Suzawa.
</i></blockquote>
While ACTA hasn't received that much attention in Japan, allowing the government to get away with such shenanigans, it seems likely that any attempt to do something similar elsewhere would be met with more widespread resistance.  In other words, it seems unlikely that enough countries will actually get around to ratifying ACTA -- though we should never underestimate the tricks that lobbyists and diplomats will pull to try to shove this ugly pig over the finish line.<br /><br /><a href="http://www.techdirt.com/articles/20120913/10410120375/will-acta-ever-be-real-treaty.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120913/10410120375/will-acta-ever-be-real-treaty.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120913/10410120375/will-acta-ever-be-real-treaty.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>might-be-tough</slash:department>
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<pubDate>Thu, 13 Sep 2012 00:19:00 PDT</pubDate>
<title>The New Kremlinology: Decoding The Signals Of Future EU Copyright Enforcement Moves</title>
<dc:creator>Glyn Moody</dc:creator>
<link>http://www.techdirt.com/articles/20120912/02343820354/new-kremlinology-decoding-signals-future-eu-copyright-enforcement-moves.shtml</link>
<guid>http://www.techdirt.com/articles/20120912/02343820354/new-kremlinology-decoding-signals-future-eu-copyright-enforcement-moves.shtml</guid>
<description><![CDATA[ <p>The negotiations behind closed doors of major treaties like ACTA and TPP, and the refusal of participants to release official drafts or to engage in any kind of substantive dialog, has meant that activists and observers have been obliged to seize upon even the smallest signs and hints emerging from those talks in an attempt to guess what is going on.  In a way, we are witnessing the birth of a new form of <a href="http://en.wikipedia.org/wiki/Kremlinology">Kremlinology</a>, which Wikipedia explains as follows:

<i><blockquote>During the Cold War, lack of reliable information about the country forced Western analysts to "read between the lines" and to use the tiniest tidbits, such as the removal of portraits, the rearranging of chairs, positions at the reviewing stand for parades in Red Square, the choice of capital or small initial letters in phrases such as "First Secretary", the arrangement of articles on the pages of the party newspaper "Pravda" and other indirect signs to try to understand what was happening in internal Soviet politics.</blockquote></i>

Via <a href="https://twitter.com/gchampeau/status/245457617286213632">Guillaume Champeau</a>, we learn that PCInpact (<a href="http://www.pcinpact.com/news/73722-des-relents-dacta-dans-resolution-votee-au-parlement-europeen.htm">original</a> in French) has spotted a treasure trove of such subtle hints about what's happening within the EU on the copyright enforcement front.   It's a document entitled "<a href="http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A7-2012-0262+0+DOC+XML+V0//EN">Report on the online distribution of audiovisual works in the European Union</a>", drafted by the Committee on Culture and Education, and submitted to the European Commission.  
</p><p>
It's couched in an apparently interminable sequence of deadly dull clauses beginning "having regard to..." and "whereas...", before launching into a long list of mostly reasonable ideas for making more cross-border digital content available in the EU.  But hidden away amongst these are some breathtaking suggestions.
</p><p>
Here, for instance, is Section 39:

<i><blockquote>Calls on the Commission to afford internet users legal certainty when they are using streamed services and to consider, in particular, ways to prevent the use of payment systems and the funding of such services through advertising on pay platforms offering unauthorised downloading and streaming services;</blockquote></i>

That may sound familiar, since it's identical to one of the core ideas of SOPA: cutting off all funding to sites accused of permitting unauthorized downloads. 
</p><p>
Here's Section 42:

<i><blockquote>Recognises that, where legal alternatives do exist, online copyright infringement remains an issue and therefore the legal online availability of copyrighted cultural material needs to be supplemented with smarter online enforcement of copyright while fully respecting fundamental rights, notably freedom of information and of speech, protection of personal data and the right to privacy, along with the 'mere conduit' principle;</blockquote></i>

This, by contrast, is straight out of ACTA, where Section 27 says:

<i><blockquote>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&#8217;s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.</blockquote></i>

Note the same empty promise to respect various rights that is completely undermined by the other part requiring copyright enforcement that ignores them.  The only real change is that "effective" has been upgraded to "smarter".
</p><p>
This trick of mixing contradictory demands is repeated in Section 59 of the EU report:

<i><blockquote>Calls on the Commission to consider ways to encourage network operators to standardise their technical tools and reverse the current trend of removing responsibility from these operators regarding consumer protection, implementation of intellectual property rights and ensuring Internet privacy;</blockquote></i>

So, on the one hand, network operators are supposed to protect consumers and maintain their privacy, while on the other, they will be forced to become responsible for enforcing intellectual monopolies -- losing that "mere conduit" status that was invoked in Section 42 above -- and turn in accused customers to the authorities.
</p><p>
All-in-all, this is an extraordinary document, in part because of its repeated call for contradictory actions, but mostly for the way it asks the European Commission to bring back some of the worst ideas in SOPA and ACTA.  New Kremlinologists will obviously need to keep a close eye on missing portraits or the re-arrangement chairs in order to glean further information about the secretive plans that are being discussed deep within the bowels of the EU machine.
</p><p>
Follow me @glynmoody on <a href="http://twitter.com/glynmoody">Twitter</a> or <a href="http://identi.ca/glynmoody">identi.ca</a>, and on <a href="https://plus.google.com/100647702320088380533">Google+</a></p><br /><br /><a href="http://www.techdirt.com/articles/20120912/02343820354/new-kremlinology-decoding-signals-future-eu-copyright-enforcement-moves.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120912/02343820354/new-kremlinology-decoding-signals-future-eu-copyright-enforcement-moves.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120912/02343820354/new-kremlinology-decoding-signals-future-eu-copyright-enforcement-moves.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>rearranging-the-chairs</slash:department>
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<pubDate>Thu, 6 Sep 2012 03:27:16 PDT</pubDate>
<title>Japan Rams ACTA Through; Ratifies It While Avoiding Debate</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20120906/02341020292/japan-rams-acta-through-ratifies-it-while-avoiding-debate.shtml</link>
<guid>http://www.techdirt.com/articles/20120906/02341020292/japan-rams-acta-through-ratifies-it-while-avoiding-debate.shtml</guid>
<description><![CDATA[ We heard some rumblings out of Japan over the weekend that the ruling party was seeking to ram ACTA through the ratification process there.  This wasn't a huge surprise.  Japan was actually a key player in the formation of ACTA at the very beginning, and it was where the first official "signings" all took place.  Japan has been pushing for exceptionally strict copyright laws and ACTA was supposed to help spread such laws further around the globe.  Already, we've seen the country <a href="http://www.techdirt.com/articles/20120625/03200019461/japan-criminalizes-unauthorized-downloads-making-dvd-backups-maybe-watching-youtube.shtml">criminalize</a> unauthorized downloads and making DVD backups... leading to a publishing exec facing <a href="http://www.techdirt.com/articles/20120723/08100319796/publishing-execs-arrested-face-jail-time-because-book-tells-people-how-to-back-up-dvds.shtml">jail time</a> for offering a book that tells people how to back up their DVDs.
<br /><br />
About a month ago, the upper house of the Japanese legislature passed ACTA, as the first step in ratifying it.   Some had thought that ACTA might stall out as a minor issue while other political turmoil went on, but it appears that Japan's ruling party has decided to push forward with the ratification.  Last week, the Foreign Affairs Committee within the legislature <a href="https://whyweprotest.net/community/threads/acta-passes-in-japan-9-9-rally-to-be-held.104966/" target="_blank">tried to push through ACTA</a> without allowing any discussion from opposing politicians -- which caused a ruckus, leading to a slight delay.  However, after a few days, the committee passed it anyway.  The ruling party then sought to do something similar, rushing it through a full vote, which appears to have just happened, <i>resulting in ACTA's approval</i> with effectively no real debate.  In fact, it was mostly a non-story in Japan.  It wasn't covered by the press and most politicians were basically silent about it.
<br /><br />
This is fairly incredible, given the widespread protests we saw towards ACTA in Europe and a <a href="https://www.eff.org/deeplinks/2012/08/copyright-japan" target="_blank">rapidly growing protest movement</a> in Japan.  Still, the protestors admit that ACTA just hasn't caught on as an issue in Japan like it has elsewhere.  That's unfortunate for a variety of reasons, but they're hoping to change that with a protest on September 9th.
<br /><br />
Of course, there's a question of how useful is it to ratify ACTA when many of the other negotiating parties (mainly the EU countries) don't seem likely to follow through and ratify the document in its current form.  One report I heard out of Japan suggested that the ruling party there recognizes that ratifying ACTA is mostly symbolic at this point, but that it needed to be done to "save face" for the negotiators.  Of course, if they really wanted to "save face," perhaps they shouldn't have negotiated for absolutely awful limits on how copyright can be reformed, while pushing for greater enforcement without necessary safety valves against abuse.  Either way, the whole thing definitely has all of the appearances of ACTA being rammed through by political interests who don't want any debate on such a topic.<br /><br /><a href="http://www.techdirt.com/articles/20120906/02341020292/japan-rams-acta-through-ratifies-it-while-avoiding-debate.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120906/02341020292/japan-rams-acta-through-ratifies-it-while-avoiding-debate.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120906/02341020292/japan-rams-acta-through-ratifies-it-while-avoiding-debate.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>but-of-course</slash:department>
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<pubDate>Fri, 10 Aug 2012 00:10:20 PDT</pubDate>
<title>India's ACTA: Intellectual Property Rights And Secrecy Stall Treaty</title>
<dc:creator>Wendy Cockcroft</dc:creator>
<link>http://www.techdirt.com/articles/20120808/10592619965/indias-acta-intellectual-property-rights-secrecy-stall-treaty.shtml</link>
<guid>http://www.techdirt.com/articles/20120808/10592619965/indias-acta-intellectual-property-rights-secrecy-stall-treaty.shtml</guid>
<description><![CDATA[ The European Union has been secretly negotiating a free trade agreement with India since 2007 that is worryingly similar to
ACTA.  Intellectual property rights enforcement would <a href="http://www.msfaccess.org/sites/default/files/MSF_assets/Access/Docs/ACCESS_briefing_CustomsRegs_ENG_2011.pdf" target="_blank">include border detention and seizure measures</a> of goods being imported by India, exported by India or in transit via India's ports or airports. This could affect the <a href="http://ec.europa.eu/health/eu_world/docs/ev_20110616_rd01_en.pdf" target="_blank">generic drugs</a> that India produces for its people, as we <a href="http://www.techdirt.com/articles/20120710/12063819648/india-moves-even-more-its-healthcare-away-western-pharma.shtml" target="_blank">noted</a> last month.  The European Union is <a href="http://www.thehindubusinessline.com/industry-and-economy/article3731287.ece?ref=wl_opinion" target="_blank">eager to wrap the agreement</a> up by the end of the year, according to Belgium's Deputy Prime Minister and Trade Minister Didier Reynders.  He wants to gain access to public procurement, chemicals and pharmaceutical products, health care, technologies, life sciences, renewable energy, and urbanization. This sounds peachy till the matter of <a href="http://www.madhyam.org.in/admin/tender/Madhyam%20BP7.pdf" target="_blank">India's arbitration notices</a> is considered.  As public interest NGO Madhyam <a href="http://www.madhyam.org.in/admin/tender/Madhyam%20BP7.pdf" target="_blank">states</a>, <blockquote><span style="font-style:italic">All
Indian IIAs (International Investment Agreements) contain a broad
asset-based definition of investment stating that investment means
every kind of asset. This broad definition is then followed by an
inclusive or non-exhaustive list of assets, which includes direct
investment, portfolio investment, intellectual property rights, rights
to money or to any performance under contract having a financial value,
business concessions conferred under law or contract. Such a broad
definition of investment expands the jurisdiction of IIAs to virtually
cover almost all areas of investment. <br /><br />
Fair and equitable
treatment (FET) has emerged as one of the most litigated issues in
investment treaty arbitration. At the heart of this controversy is the
meaning of FET. Almost all Indian IIAs contain the FET principle
without providing much guidance regarding its meaning. Thus,
determining the content of FET is left to the discretion of investment
treaty arbitration tribunals.</span> </blockquote>
This is the problem: foreign corporations go in with promises of investment opportunities and exploit the people till the government pushes back, then the foreign investor takes them to an international trade court.
<br /><br />
The <a href="http://www.business-standard.com/generalnews/news/india-eu-fta-hits-services-roadblock/41938" target="_blank">stumbling block</a> at the moment is that India wants the EU to ensure free mobility of professionals without restrictions such as experience whereas the EU wants greater commitment by India to allow foreign investment in services such as retail, legal and postal.  Allegations of the existence of a 'Kashmir center' run by anti-India elements in Brussels aren't helping. Meanwhile, opposition to the treaty is mounting from <a href="http://www.tuc.org.uk/international/tuc-19635-f0.cfm" target="_blank">unions</a>, <a href="http://www.bilaterals.org/spip.php?article21796" target="_blank">international NGO</a>s, and <a href="http://blogmartinmep.eu/2012/08/07/eu-india-free-trade-agreement/" target="_blank">David Martin MEP</a>, rapporteur for the European Union's International Trade Committee, whose <a href="http://blogmartinmep.eu/2012/07/04/acta-dead-in-water/" target="_blank">recommendations</a> helped to pull ACTA down in July. <br /><br />
When will they learn to stop negotiating treaties that only benefit big business in secret? Opposition to this treaty will continue to grow as
more details emerge.<br /><br /><a href="http://www.techdirt.com/articles/20120808/10592619965/indias-acta-intellectual-property-rights-secrecy-stall-treaty.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120808/10592619965/indias-acta-intellectual-property-rights-secrecy-stall-treaty.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120808/10592619965/indias-acta-intellectual-property-rights-secrecy-stall-treaty.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>and-again-and-again-and-again</slash:department>
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<pubDate>Thu, 26 Jul 2012 23:27:39 PDT</pubDate>
<title>Canadian Cities Looking To Opt-Out Of CETA Rather Than Get Roped Into An ACTA-Like Situation</title>
<dc:creator>Wendy Cockcroft</dc:creator>
<link>http://www.techdirt.com/articles/20120724/00143019803/canadian-cities-looking-to-opt-out-ceta-rather-than-get-roped-into-acta-like-situation.shtml</link>
<guid>http://www.techdirt.com/articles/20120724/00143019803/canadian-cities-looking-to-opt-out-ceta-rather-than-get-roped-into-acta-like-situation.shtml</guid>
<description><![CDATA[ <p>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&mdash;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&mdash;but that's exactly what's happening now in Canada, where <strong>cities</strong> are seeking to avoid an ACTA-like situation by asking to opt out of the Canada-EU Trade Agreement (CETA) at the municipal level.</p>

<p>The effort is being led by <a href="http://canadians.org/about/index.html" target="_blank">The Council of Canadians</a>, 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 <a href="http://canadians.org/action/2011/CETA-resolution.html" target="_blank">rules about how governments and other public bodies can spend money on goods and services, and which they fear will unduly restrict municipalities</a>:</p>

<blockquote><em>For example, new rules in CETA on how public bodies spend money would:
<ul>
<li>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.</li>
<li>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.</li>
<li>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.</li></ul>
<p>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.</p></em></blockquote>

<p>So far, over 30 local governments representing over 5.5 million people have <a href="http://maps.google.ca/maps/ms?msid=212953270345448797564.0004b25bba0a636506a16&#038;msa=0&#038;ie=UTF8&#038;t=m&#038;vpsrc=6&#038;ll=59.445075,-96.855469&#038;spn=32.895683,87.890625&#038;z=3&#038;source=embed" target="_blank">joined the exemption campaign</a> 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. <a href="http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/eu-ue/can-eu.aspx?view=d" target="_blank">Assurances</a> from the Candian Foreign Affairs and International Trade Ministry on the <a href="http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/eu-ue/myths-mythes.aspx?lang=eng&#038;view=d#eleven" target="_blank">Myths and Realities page</a> are reminiscent of the EU&#39;s ACTA Facts, and the Council of Canadians have a page that <a href="http://www.cupelocal1091.com/CETAMythsEN.pdf" target="_blank">debunks them</a>. International <a href="http://www.ipolitics.ca/2012/02/02/peter-clark-bursting-the-ceta-water-scare-balloon/" target="_blank">trade strategist Peter Clark</a> laughs off the fears Canadians have of <a href="http://pages.netdirect.ca/%7Ecdfrey/articles/waterbarons.html" target="_blank">corporate control</a> of their water services.</p>

<blockquote><i>CETA is not about diverting Canada&#8217;s lakes and rivers &#8211; which would not do Europeans much good in any event because we have no common borders... There is no requirement to privatize services which <span style="font-weight:bold">do not compete with private entities</span> and do not operate on a commercial basis. </i></blockquote>

<p>There are <a href="http://www.countercurrents.org/lendman090310.htm" target="_blank">good reasons</a> for the municipalities&#39; concern about the investors&#39; 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.</p><br /><br /><a href="http://www.techdirt.com/articles/20120724/00143019803/canadian-cities-looking-to-opt-out-ceta-rather-than-get-roped-into-acta-like-situation.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120724/00143019803/canadian-cities-looking-to-opt-out-ceta-rather-than-get-roped-into-acta-like-situation.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120724/00143019803/canadian-cities-looking-to-opt-out-ceta-rather-than-get-roped-into-acta-like-situation.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>municipalities-fight-back</slash:department>
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