by Mike Masnick
Tue, Nov 9th 2010 2:09pm
by Mike Masnick
Thu, Oct 14th 2010 7:06pm
from the act-now dept
Of course, what may be most interesting is how countries who are not a part of the negotiations feel about this. Many people feel that the whole ACTA process was set up outside of WIPO and the WTO in order to avoid having to deal with the BRIC countries (Brazil, Russia, India and China), which are all developing rapidly, and have a very different viewpoint on intellectual property than the countries involved in the negotiations. So, it's interesting to see that Brazil has already slammed the agreement (Google translation from the original Portuguese). A Brazilian official said that the agreement was not legitimate, negotiated by a closed group without considering all of the issues at play.
ACTA negotiators have said that they hoped, after their own countries agreed to sign onto ACTA, that the BRIC countries would follow down the road. Of course, if they wanted that to happen, perhaps they should have asked them to join the discussions. But, what would that accomplish, since the goal appears to have been to keep many stakeholders out of the negotiations, rather than being inclusive.
from the too-bad dept
Of course, in typical ACTA fashion, the statement itself was blatantly dishonest as well. It tried to claim that "all stakeholders" were heard from with the following sentence:
During the week, the Government of Japan hosted informal meetings with stakeholders, including representatives from non-governmental organizations (NGOs) and business leaders, and the participants in the ACTA negotiating round.Except, as we detailed, that's not being intellectually honest. For the past month, negotiators had been telling the NGOs that the meetings were starting September 27th. Then, they suddenly announced that it would actually start September 23rd, and the NGO meeting would be on the 24th. Except, by the time they announced it, it was too late for most representatives to get to Japan in time (many had booked flights for the following week), and the Japanese government refused to change the time of the meeting. Then, finally, when the meeting was held and only 2 or 3 NGOs were actually able to make it, it wasn't so much a "meeting" as it was lunch -- and, even then, all the ACTA negotiators sat together, leaving no room for the NGOs. If that's how the negotiators "meet with stakeholders," who represent consumer rights, you can get a sense of how much ACTA cares about consumers.
Either way, the negotiators are promising to release a final text shortly, in take-it-or-leave-it fashion. It would be nice if countries were smart enough to "leave it," but I'm sure that there's too much lobbying money on the table for most politicians to stand up for what's right here.
by Mike Masnick
Wed, Sep 22nd 2010 3:34pm
from the how-nice dept
You can't book a plane trip if you don't when to book it for. It takes 15- 20 hours to fly to Japan from the east coast of the U.S. and you land a day after you take off. So U.S. groups that want to attend the meeting at the start of it -- you needed to buy your ticket when the announcement hit after 3pm yesterday and be on a plane now. If you want to go to the one hour civil society meeting, you need to leave by tomorrow. Those that have bought a ticket likely have one for next week -- when everyone thought the negotiation would be. So they will miss the civil society meeting.Nice of them, huh? Flynn also notes that while an agenda has been posted on the USTR website, it's almost impossible to find:
Figuring out that the announcement of the date of the meeting was made yesterday was no easy feat. Two individuals (myself and Malini Aisola from KEI) inquiring with USTR yesterday about the meeting were first told that they had to contact the Japanese Embassy for information on the meeting. We were given the name of Mr. Kazuyuki Takimi, First Secretary, Economic Section, Embassy of Japan, Kazuyuki.Takimi@mofa.go.jp, 202-238-6729.
Mr. Takimi said he did not know when the meeting was going to be held because he had not spoken to "Tokyo" lately. He said he recalled it might be meeting on September 23, but could not confirm. He said he had no agenda and no knowledge of any civil society meeting opportunity.
If you want to laugh -- go to that site and try to find the agenda. It is not in any of the press releases on the top or bottom of the site. It is not the prominent link on the left for the agenda to the 5th Round -- that was in 1999. It is not in the upper right hand or left hand boxes where the recent announcements are. Still looking? It starts with the 372nd word in the background essay in the middle page.Of course, if you do find the agenda (pdf), you discover it's nothing substantial at all. It basically just says they'll be meeting pretty much every day.
Considering that almost everyone agrees the Tokyo meetings are intended to "finalize" the (still secret) agreement, it looks like ACTA maybe going out the same way it came into life: in near total secrecy, without involving rather important stakeholders representing the people ACTA will impact the most. What a disgraceful process.
by Mike Masnick
Wed, Aug 18th 2010 6:26pm
from the consumer-groups?-not-present dept
I'm reminded of Adam Smith's famous quote:
"People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices."But, really, I'm trying to figure out what the purpose of these meetings really could be. After all, these companies coming to some form of an agreement doesn't mean a damn thing if the FCC decides to push forward with its own plans. So, the idea must be that some sort of voluntary industry agreement could mean that the FCC won't make certain rules official, but again that seems backwards. The industry shouldn't be colluding to set up rules -- especially without anyone representing consumers' interests (remember them?). Rather than all these industry lobbyists hashing out some sort of agreement that might not mean anything, shouldn't we just focus on making sure there's enough competition in the market that keeps the most egregious possible actions unthinkable by these companies? Is that so much to ask for?
by Mike Masnick
Thu, Aug 12th 2010 11:23am
from the transparent-as-mud dept
However, the whole thing has been shrouded in secrecy. The USTR hasn't even said where the meetings will be held, who's attending or what the agenda is -- things that most other countries hosting these negotiations have released at least a week in advance. The latest report is that, contrary to earlier claims, this meeting will include more than just EU and US negotiators, so it's sounding more like a full negotiation. And yet... no one's really sure, because the supposedly "transparent" USTR isn't saying a word. Of course, as with all things ACTA, the more the USTR stays quiet, the more things leak: so a proposed agenda has leaked, and it certainly looks like a pretty thorough negotiation, rather than just the proposed "hash out EU/US differences" sort of thing. But, it's worth noting that the very last item on the list of things to be discussed (well, before "press release") is "transparency." I guess that's the USTR's version of transparency: don't tell anyone anything, but talk about transparency at the meeting.
by Mike Masnick
Wed, Jul 14th 2010 11:51am
from the leaky-old-boat dept
But what was most interesting is how negotiators have acted since then. First, they pretended that the released draft proved all the complaints about ACTA were unfounded, but the details showed something quite different, which has even supporters of stronger intellectual property crying foul.
And how have negotiators responded? Rather than living up to their promises of transparency, they've gone back into secrecy mode. They admitted that the draft release was a one time deal, which was made even clearer when the last meetings concluded without a release of the new draft -- and not even a mention of the fact that they wouldn't be releasing it.
Of course, this is the internet age, and keeping stuff secret tends to backfire badly. Via Michael Geist we've learned that the latest ACTA draft has been leaked once again. You can read it below:
by Mike Masnick
Tue, Jul 13th 2010 3:47pm
from the where's-the-latest-draft dept
Now, even more disappointing are reports that the EU negotiators have gone to discuss the matter with the EU Parliament, but would only do so in secret, forbidding those in attendance from telling anyone what was discussed. In other words, for all the talk of openness and transparency, it appears it was all a bluff. They showed one (incomplete) draft, and went right back to secrecy. It's as if they thought that people asking for transparency could be fooled by a quick glimpse.
It turns out that there were actually two separate meetings held for MEPs, with the first one being secret, and the second one being open. Some of what happened in that second meeting is now being reported in the press, with the EU negotiators insisting they won't fall for "US hypocrisy," within ACTA (whatever that means) -- but refusing calls by MEPs to make the draft public again. It's still not at all clear what was said in the first meeting.
by Mike Masnick
Tue, Jul 6th 2010 8:23pm
from the routing-around dept
"A number of countries feel [there is] an important area of public policy they are not able to address in a multilateral forum, and so have gone outside the multilateral framework to satisfy their desire for creating some form of 'international' cooperation," Gurry told Intellectual Property Watch in an interview last week. "That's the challenge, for us. And whether it concerns enforcement, ACTA, or any other area, that, on the whole, is a bad development for a multilateral agency, that member states start to do things outside."I'd argue that he's being a bit too hard on himself. It's not that the WIPO process doesn't work (though, I do have some problems with the WIPO process as well), but that the copyright holders were upset that they no longer had near unilateral control over the process. It wasn't that they felt WIPO couldn't address the issues, but that it would be much harder to get them addressed in the way industry folks wanted.
As part of the discussion, he also pointed to the recent fight over helping the blind access more content through exceptions in copyright law -- an WIPO process that has been stymied by industry interests who don't like to see any new exceptions applied to copyright. To WIPO, that gridlock on such an obviously reasonable solution is worrying:
The frustration it has caused is a consequence of practical issues not being addressed, he said, citing recent difficult discussions in the Standing Committee on Copyrights and Related Rights on increased access for visually impaired persons. "Can anyone not subscribe to that principle, as a general rule?" he asked, with visually impaired readers only obtaining access to about five percent of all published work in reasonable time.If anything, what this demonstrates is not any problems with the WIPO process, but a group of organizations so used to getting their way on copyright issues so totally and completely, that they're not used to facing people questioning the actual impact of the regulations and international agreements they push. When that happened, they decided to take their ball and go home to play with only their friends. That's what ACTA is really about.
"Can anyone stand up and say that they should not have more [access], that we should not do something about it?" It is such an obvious question, he said "but we are not getting an agreement" although the last meeting showed genuine involvement of member countries.
by Mike Masnick
Tue, Jun 29th 2010 12:28pm
from the you-won't-like-the-answers-though dept
On June 28, 2010, at 7:30pm Swiss time, a group of civil society representatives met with 21 ACTA negotiators. The negotiators included representatives (21 in all) from the Switzerland, France, Australia, New Zealand, Singapore, Mexico, Japan, U.S., Morocco, Canada and Korea....I agree with Flynn that this is the first time I've heard any negotiator admit that this might change laws. We've heard negotiators from the US, EU and elsewhere all claim that this wouldn't change laws at home, but we hadn't found anyone willing to admit that it would change laws elsewhere. As for that last point, it's really disappointing that these negotiators still want to cram something totally unrelated to actual counterfeiting into this bill, and do so in such a ham-fisted manner that doesn't take into account important realities in the marketplace, but instead interprets the situation exactly as a small contingent of companies wants them to see the situation.
It was agreed that, reflecting civil society's objectives to represent and report back to the broader public, this meeting would be on the record. The following are notes taken by Sean Flynn, American University Washington College of Law's Program on Information Justice and Intellectual Property. These notes are direct quotes to the best of my note taking ability and memory. But others at the meeting may have more complete notes in some areas. Rohit Malpani of Oxfam and Sanya Smith of TWN were also taking notes.
The questions raised were given to the negotiators in advance and the answers were represented as those of the collective views of the negotiators rather than of an individual negotiator unless otherwise indicated. Unless otherwise indicated, the speaker is the chair of the Swiss Delegation who was appointed to speak for the group.
There are a couple news items here.
- First, there is an "emerging consensus" to take patents out of the border measure chapter, but not out of the rest of the agreement. Some parties appear to desire to take patents out of the whole text. The EU appears to be in favor of leaving patents in the civil chapter. The change appears to be a rather direct result of concerns raised by access to medicines advocates.
There are still major concerns on access to medicines and free flow of goods in the border chapter. Negotiators seem committed to requiring in transit seizure and it is possible (although there seems some division) that it will include common trademark infringements and non-commercial scale copyright infringement, thus reaching far beyond TRIPS standards.
- There was an admission that countries may have to change their laws to comply with ACTA. That may not be real news, but I have not heard it admitted by a delegate before. But the EU continued to press that they will not change their laws.
- There seemed to be little desire to remove or narrow considerably the internet chapter. There was a desire by some delegates to ensure that DMCA-like protections are in the ACTA internet chapter. Several discussed (off line) the desire to combat "file sharing," even apparently when not done on a commercial scale.
As for the full Q&A including both questions listed yesterday and some followups, Sean provides the following account, with my commentary in between:
Q: Will negotiators commit to continue releasing the text of the Agreement following completion of this week's negotiating round and subsequently until the completion (or abandonment) of negotiations?This is a huge cop-out of an answer. First of all, this hasn't been anywhere close to an "extremely transparent process." The whole thing has been totally secret other than bland content-less press releases. The full document was released once after nearly a year of public screaming about it and a huge slap down by nearly the entire EU Parliament. Claiming that there's some sort of different issue between plurilateral negotiations and multilateral ones is hiding behind semantics.
A: This is a question that the delegation takes up at end of each round. This will be a question to be discussed and agreed by consensus.
On issue of public comments, this is a plurilateral process and each country will have to take that into account. It is not as if the ACTA group is a formal organization. For a plurilateral agreement, we have promoted a great deal of transparency already more than in other agreements.
Q. Wait. In other processes (e.g. anything done at WIPO or the example of the Doha declaration) civil society got access to text before and after each round. That has not been the case here. We received text once, after years of negotiations and close to what you declared to be the end point of the discussions.
A. Those are multilateral negotiations. This is a plurilateral negotiation. We do not have a secretariat to assist with such matters. This has been an extremely transparent process.
Q: Are negotiators reviewing the text of the Agreement to ensure it is fully consistent with the WTO TRIPS Agreement? Will the WTO or other independent legal experts be asked to review the text of the Agreement to ensure it is legally consistent with WTO rules? Will you provide clear and objective information regarding the evidence base upon which ACTA is purportedly justified, as far as international law, access to medicines and Internet are concerned?Incredible. No evidence is provided at all nor do they commit to providing any evidence. Instead, it's just "trust us, we know there's a problem." Ridiculous. Faith-based policy making which actually contradicts the evidence, which the negotiators refuse to look at. Shameful.
A: This is in the process of being negotiated. It is clear that parties are WTO members and they have rights and obligations under WTO. This does not change if they should join ACTA. There is dispute settlement possibility. If there is a question of compliance then another interested WTO member could invoke dispute settlement. With regard to the press release of the 8th round, the negotiators declared that the ACTA will be consistent with TRIPS and Doha.
On the question of the evidence base -- the ACTA countries are seriously concerned about the phenomena of growing counterfeiting and piracy. We will not cite one particular figure or study. Taken together the development cannot be denied. Whether it is about real or intellectual property it is the government's duty to provide effective enforcement. More effective enforcement standards are needed to address this phenomenon.
Q: Criminal sanctions are being negotiated, which imply the usage of police & judiciary systems, as proven by the presence among the negotiators of the EU Presidency. How can you justify any legitimacy for criminal sanctions (which highly impact fundamental freedoms) being negotiated outside of any democratic frame, in the secrecy of what is much more than a "trade agreement"?This is the point mentioned in the summary about admitting that some countries will have to change their laws. But, again, the answer is extremely misleading. It pretends that, after ACTA is signed, sealed and delivered, various countries might then choose not to implement parts of it via the democratic process. This (very much on purpose) ignores what these negotiators know happens in these situations, which is that the industry supporters, who wrote the trade agreement, then go on a massive PR/government relations campaign declaring how this or that country is "not living up to its international obligations," and highlights how that country is falling behind and damaging this particular industry because it won't change its laws to meet those "international obligations." It happens all the time. It's not a truly democratic process at all, because the scales are weighted so heavily that it's nearly impossible for countries not to agree.
A: I think here it is important to point out that the ACTA negotiations are no different than other inter party negotiations. If at the end the agreement should contain additional obligations for a party compared to a country's laws, implementation of the ACTA will necessitate that it will adjust its national legal situation. For most countries, simply the approval of ACTA is dependent on parliamentary approval. Thus we very much do believe that the democratic process is being complied with. And this process of consulting with stakeholders is evidence of that commitment.
Q: What is the prevailing definition of a 'counterfeit' amongst negotiators? With respect to pharmaceuticals, is it the official position of negotiators that medicines which are suspected of patent infringement are counterfeit? If not, will you commit to ensure that the entirety of ACTA excludes patents from the scope of the agreement as the inclusion of patents is unrelated to the issue of counterfeit, and poses significant risks for access to medicines in developing countries?What a mess. It appears that the negotiators here don't even quite realize the extent of what they're negotiating and the potential impact of their negotiations. Having one negotiator claim that "a mark that is confusingly similar is counterfeit" is scary in its ignorance of what was being discussed.
A. The issue of definitions is still under negotiation. The only definition currently in the text is for counterfeit trademark goods, which reflects the TRIPS agreement.
As regard to risks to access to medicines in developing countries, which is a concern also raised in question 5: As far as border measures is concerned there is an emerging consensus that patents should not be included in border measures.
Q. The concern about patents is much broader. The April draft mentions patents in every section of the text, at least in brackets.
A. I can only say that there is an emerging consensus on patents being taken out of border measures.
Q: Should customs authorities be authorized to seize medicines in 'transit countries', even when the medicines do not infringe any laws in the producing or importing countries? Will you commit to ensure that any inclusion of ex officio action and/or in-transit seizures is optional and not mandatory for countries? If permitted, do negotiators maintain that customs officials in exporting, transit or importing countries are capable of determining whether medicines infringe patents or whether a pharmaceutical product is 'confusingly similar'? Should there be any anti-abuse provisions included?
Follow up question: You said that there is an emerging consensus to take patents out of border measures, but you did not comment on the broader question of applying transit measures to all trademark infringement was opposed to the more limited set of true criminal trademark counterfeiting. Nor did you address the question of whether there will be transit seizures authorized based on the law of the transit country rather than the law of the country of importation, as TRIPS Art. 52 requires.
A: We see trademarks and patents as different. We see justification to have trademark in the scope of border measures. This is the most common practice we are trying are trying to respond to. There is little justification for someone who chooses a mark that is confusingly similar, to the degree that it cannot be distinguished from the original mark.
Q. You seem to be confusing two standards in your answer. The standard that a mark cannot be distinguished from the original -- that it is identical or intended to be identical -- is a criminal counterfeit. But the concept of trademark infringement is much broader, at least in U.S. law. The question is whether you are applying the same border measure seizure standards to alleged counterfeits as to alleged confusingly similar trademark violations which are normally a civil matter and involves more complex legal and factual determinations. Do you understand the distinction we are making?
A: A mark that is confusingly similar is counterfeit.
(A from Susan Wilson, U.S.): Wait a minute. There are civil, criminal and administrative remedies for multiple kinds of trademark violations. But there are only criminal sanctions for counterfeiting -- using an identical label. The category of confusingly similar is only subject to civil remedies in most countries. There is a distinction there. Confusingly similar is not the counterfeit legal standard.
Q. Thank you. And the question is whether the confusingly similar standard of trademark infringement, as opposed to counterfeiting, is being included for consideration for in transit seizures of goods, ex officio [on the official's own instigation, without a complaint], based on a suspicion or prima facie evidence. That is the Amoxicillin case and it worries access to medicines advocates. Is that still on the table or is there an emerging consensus to remove that standard?
A: There is no emerging consensus. It is still on the table in the border chapter.
Q: Could negotiators list out the relevant anti-abuse provisions in ACTA to ensure that rights holders do not use the Agreement to expand intellectual property protection for products, including medicines? ACTA currently contains no pro-consumer provisions and minimal protections for an alleged infringer, alongside maximum privileges and incentives for a right-holder to allege infringement (including extraordinarily limited liability for abuse of recourse measures). The enforcement provisions are universally mandatory while the protections are optional. There are virtually no references to exceptions and limitations, or to TRIPS flexibilities and safeguards. Do negotiators feel that sufficient balance has been achieved under the Agreement?Here I'll let Flynn handle the commentary himself:
A: ACTA delegates would like to make clear that ACTA is not about substantive standards. It is not to expand existing rights. With regard to alleged infringers, the agreement may not directly address this issue. National law on the protection of consumers will apply to implementation at the national level.
ACTA delegates do consider that ACTA provides for exceptions. E.g. the de minimus provision has been proposed by some parties and is being considered.
With regard to maximum privileges to prohibit abuse, I can point to parts of the draft permitting rights holders to request customs authorities to assist with border measures and the authorities may ask for security before asking for assistance.
One consistent problem with the April draft is that is incorporates some but not all TRIPS protections from abuse, balancing provisions and proportionality requirements. The de minimus provision referred to is a direct quote from TRIPS. But in many other areas the agreement repeats or expands a TRIPS enforcement measure but omits any reference to the accompanying abuse protection or balancing feature in TRIPS. The Washington Communique notes, for example, that ACTA fails "to fully protect and incorporate key protections against abuse (e.g. Articles 41.1, 48.1, 48.2, 50.3, 53.1, 56), flexibilities to promote public interests (e.g. TRIPS Art. 44.2), requirements for the proportionality of enforcement measures (e.g. Arts. 46, 47), and provisions providing for balance between the interests of proprietors, consumers and the greater society (e.g. TRIPS Arts. 1, 7, 8, 40, 41.2, 41.5, 54, 55, 58)."
Q: Are negotiators aware that the Agreement could create third party liability for suppliers of active pharmaceutical ingredients whose materials may be used in mislabeled products without their knowledge? What are the reasons for holding suppliers of active pharmaceutical ingredients unknowingly liable for mislabeled products?Again avoiding the actual reality on the ground. One of the problems that we've noted with the ACTA text is that while it "leaves parties free to implement as they see fit," it has some pretty severe restrictions on how free they really are to implement things. So, for example, while it doesn't technically mandate three strikes, it makes it clear that a three strikes regime would meet ACTA's requirements... and provides no other alternatives. So you're free to implement however you want, but the only way you can assure you're in compliance is to implement it the way they want you to. To paraphrase Henry Ford, the negotiators are saying: "You can implement it however you want, so long as it's the way we want you to."
A: Liability is still under negotiations. Under national laws, liability depends on knowledge and fault. These national standards will still apply in this context.
Q: ACTA can become a very strict text should certain proposals be followed, not leaving much room to maneuver for its application. Are contracting parties foreseeing to include in the agreement exceptions to preserve the public interest or flexibilities allowing for adaptation to different national realities? Will you remove institutional measures in which ACTA Member countries attempt to export heightened TRIPS-plus IP protections to other countries, and in particular developing countries
A: All the parties are negotiating to enter this agreement in an autonomous, voluntary manner. ACTA parties see that the agreement they would like to fashion will leave parties free to implement as they see fit in their national system.
Q: How do you guarantee that policies required to benefit from liability safe harbour for Internet service/access providers won't have the effect to force them to restrict fundamental freedoms -- such as freedom of expression and communication, privacy, and the right to a fair trial -- turning them, via contractual policies, into private copyright police/justice?Wow. The French delegate seems a bit touchy on that topic, huh? The question was not claiming that France or the EU was a totalitarian state at all. Just how do they ensure free expression when the text of the agreement seems to very much go against that by encouraging companies to filter or block certain forms of speech aggressively. Bizarre that rather than answer the question the delegates responded with such a strange attack on the questioner.
A: It is important to recall that ACTA parties have expressed concern about fundamental rights after Wellington. We are aware of the importance of this matter and we have made clear . . . It is clear that ACTA parties are bound by human rights declarations and their own constitutions. ACTA will obviously have to comply with those norms.
Q. but you think encouraging companies to take down expression is respecting rights? This is how you make enforcement comply with freedom of expression?
A. from French delegate: You think in EU we live in a totalitarian state? Is France a dictatorship? Have you no rights in France?
Q. That is not my question.
A. I am telling you it will comply with EU law. Are you saying EU does not comply with fundamental freedoms?
Q. It is companies that collect the information. You are encouraging the companies to use that information in ways that, if done by the state, would violate fundamental privacy protections. Is that promoting fundamental rights?
A (French): Is France a totalitarian state? Is it?
Q: No, that is not what I am saying. Ok, fine. You have addressed the issue. Lets move on.
Q: There have been no open hearings or other engagements with civil society since the text was released. Will you commit for the establishment of consistent mechanisms for the ongoing engagement of civil society? More generally, how are you going to fix the process to encourage greater public deliberation on the record, with access to text, and in a meaningful setting? And how are you going to fix all of the specific concerns raised in the previous questions and in all the critics upon ACTA made until now?Another cop-out answer. Rather than admitting how secret and closed off the negotiations have been, the negotiators are just passing the blame, by saying it's not their issue to actually engage representatives from civil rights groups and civil societies. Besides, the response is again off-base. If the whole point of meeting with these groups is to understand the concerns of them and their constituents, it should be the negotiators who are seeking out such meetings. Once again, this response makes it clear that the negotiators' marching orders are not to come up with the best solution for each of the societies and countries they represent, but of a very narrow group of special interests. This is no surprise, but the answer basically confirms that they know this. Very sad.
A: This is the responsibility of each ACTA country itself. This is underway. It is happening according to the rules and practices of each member. It is a country choice.