Author: gwen

The text of the draft Anti-Counterfeiting Trade Agreement was finally released to the public yesterday. We welcome the official release of the ACTA text after two years of negotiations. We can now have a serious public debate about its content and far-reaching impact on citizens’ lives.

If the previous leaks (here, here, here and here) left any doubt, the officially released text makes it crystal clear that ACTA is not just about counterfeiting. When ACTA was announced two years ago, it was portrayed as a modest effort at increasing coordination between customs agencies tracking counterfeit physical goods. The officially released text shows that it’s far broader. First, it is not just about trademarks; it covers copyright, potentially patents, and all other forms of intellectual property. Second, it’s not just about physical goods. It’s all about the Internet — which it targets very specifically — and citizens’ ability to use it to communicate, collaborate and create. ACTA contains new potential obligations for Internet intermediaries, requiring them to police the Internet and their users, which in turn pose significant concerns for citizens’ privacy, freedom of expression and fair use rights.

Read on for our preliminary analysis on copyright issues.

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At the end of this month the United States Trade Representative’s Office will release its annual Special 301 report, a review of global intellectual property protection and enforcement standards conducted by the Office of the United States Trade Representative (USTR). Since 1989, the USTR has used the Special 301 Report to intimidate other countries into adopting more stringent copyright and patent laws by singling out particular countries for their “bad” intellectual property policies, naming them on a tiered set of “watch lists,” resulting in heightened political pressure and in some cases, the potential for trade sanctions, to encourage changes to their laws.

In previous years, the the USTR has relied heavily on submissions from the entertainment and pharmaceutical industries to compile the rankings for the Special 301 report. This has resulted in particularly unbalanced assessment criteria. Countries have been listed for proposing exceptions to their national copyright laws, for failing to sign on to controversial international treaties, and for not mirroring specific parts of US law in their national laws. In other words, countries have been listed for failing to adopt the enforcement norms from U.S. copyright law, but also for attempting to create the same type of balancing exceptions and limitations to copyright holders’ exclusive rights that have allowed user generated content and technological innovation to flourish in the U.S.

In 2006, the IIPA recommended that Chile be placed on the Special 301 Priority Watch List (a tier above the “Watch List” ranking) for considering fair-use style exceptions to copyright in Chile’s copyright law:

During 2005, several Chilean government agencies reportedly were trying to amend the bill to incorporate very broad “fair use-like” exceptions which would allow copyrighted materials to be used without the rights-holders’ authorizations. It is likely that these provisions, if included, would also meet with the objections of the copyright industries.

In 2009, Israel was placed on the Priority Watch List for refusing to adopt DMCA-style laws prohibiting the circumvention of copyright owners’ technological protection measures (TPMs) after intense parliamentary debate and doubts about whether DMCA-style anticircumvention provisions actually do anything to stop copyright infringement. This is an astute question, given that in the US, those provisions have caused considerable collateral harm to lawful users of copyrighted works while having no appreciable effect at stopping, or even slowing, digital copyright infringement. Again, this is not a matter of compliance with international law as it is frequently portrayed to be. Israel has chosen not to ratify the controversial 1996 WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty, and so is not required to adopt legal protection for copyright owners’ technological protection measures.

In 2006, Canada was subjected to an Out of Cycle Review (because the USTR thought the country merited special attention outside the normal Special 301 schedule) after it released draft copyright legislation implementing those treaties that included legal protection for TPMs, but not close enough to the DMCA to satisfy the US copyright owners in the IIPA. And Canada drew the ire of the USTR again in 2009, for requiring its customs officers to have a court order before seizing items at the border — something that ACTA looks like it will overturn.

As EFF noted in our joint submission with Public Knowledge, Special 301 neglects critical US foreign policy goals. The policies it advocates ignore the importance of the free flow of information for social and economic development, and the the need to support US technology exporters seeking new markets. We argued that the Special 301 process should account for the interests of all stakeholders in the knowledge economy — not just IP rights-holders.

We also made a number of specific recommendations for addressing the procedural deficiencies in the Special 301 process, including that the USTR should make transparent the set of factors and standards it uses for evaluating countries in each year’s Special 301 Report, and arrange for independent external verification of country data and statistics submitted by the IIPA before making factual determinations based upon it; and that the USTR should provide a meaningful opportunity for public interest advocates to file comments in response to submissions provided by copyright industry rights-holders.

The USTR opened up the Special 301 submission process this year to all interested stakeholders for the first time and received over 700 submissions. While we welcome this new approach by the Obama administration, the real test for sound policy-making will be whether the 2010 Special 301 Report takes account of the views of all stakeholders. We’ll find out shortly.

The 8th round of negotiations on the controversial Anti-Counterfeiting Trade Agreement wrapped-up in New Zealand last week, with negotiators announcing that the ACTA text will be made public next Wednesday, April 21.

Around the world, those following ACTA have been analyzing the leaked 18 January consolidated text since it surfaced on the Internet last month. The leaked version contained much text in square brackets, indicating that there was significant disagreement between negotiating countries on fundamental issues such as ACTA’s scope. The leaked text also disclosed countries’ negotiating positions. We learnt, for instance, which countries were concerned about Three Strikes (thank you New Zealand and Canada), who wants ACTA to extend to patents, and who is proposing criminal sanctions for inciting, aiding and abetting intellectual property infringement (the EU). By comparison, the official version of ACTA will be released in an “unattributed” form; countries’ negotiating stances will not be included.

The U.S. negotiators had made clear before this negotiating round that release of the ACTA text would be conditional upon progress being made towards agreement on substance. Friday’s joint announcement suggests that occurred:

“Participants had constructive and intensive discussions. They provided a much improved understanding of respective national regimes and how they worked in practice. Based on this understanding, good progress was made toward narrowing existing differences, in the areas of Civil Enforcement, Border Measures, Criminal Enforcement and Special Measures for the Digital Environment. In addition the participants held constructive discussions regarding the scope of intellectual property rights covered in ACTA.”

The official ACTA text released on Wednesday will disclose just how much progress has been made, and on what topics. Two negotiating rounds have taken place since 18 January: the 7th round in Guadalajara, Mexico, from January 26-29 focused on civil enforcement, border measures, and enforcement procedures in the digital environment and transparency, and last week’s round in Wellington, New Zealand, which covered those topics as well as criminal enforcement issues.

The decision to make the ACTA text available for public review is a major turning point. We can now have a serious public debate about the impact of ACTA on citizens’ lives. No more shadow boxing. No more opportunities for negotiating countries to dodge answering hard questions.

The fact that negotiators now feel compelled to make ACTA public is a testament to the dedication and hard work of all the people who have been making the case for transparency since October 2007. We’d like to thank the organizers of PublicACTA and all those who participated in drafting and signing the Wellington Declaration. We also want to remember and thank those parliamentarians and policy makers who have taken the time to understand the concerns raised by ACTA and raised their voices in support of greater transparency: the Members of the European Parliament, some members of the US Congress, the negotiating countries who supported more transparency for the public, and the civil society groups who have worked together across borders to raise awareness about ACTA.

We look forward to analyzing the official ACTA text on Wednesday.

In the meantime, if you’re in Europe, we encourage you to call your MEPs’ offices in Strasbourg this week and ask them to sign the Written Declaration Opposing ACTA tabled by four Members of the European Parliament – Françoise Castex (FR, S&D), Alexander Alvaro (DE, ALDE), Stavros Lambrinidis (GR, S&D) and Zuzana Roithova (CZ, EPP). More information is available here.

Let the debate begin.

EFF is pleased to announce the hire of our newest staff member – International Rights Director Katitza Rodriguez. Katitza will be working on international privacy issues, an area in which she is widely recognized as one of the world’s leading experts, with special emphasis on law enforcement, government surveillance, and cross-border data flows. Katitza will also be focusing on cybersecurity issues at the intersection of privacy, freedom of expression, and copyright enforcement.

Before joining EFF, Katitza was Director of the international privacy program at the Electronic Privacy Information Center in Washington D.C., where amongst other things, she served as the Research Director of The Privacy and Human Rights Report, an international survey of privacy law and developments in 78 countries. Katitza is well known to many in global civil society and in international policy venues for her work at the U.N. Internet Governance Forum and her pivotal role in the creation and ongoing success of the Civil Society Information Society Advisory Council at the Organisation for Economic Co-operation and Development, for which Katitza served as the civil society liaison from 2009 to March 2010.

Katitza joins Gwen Hinze, EFF International Director, and Eddan Katz, EFF International Affairs Director, in EFF’s International Team. The Internet is global, and so are threats to individuals’ digital rights and freedoms. That’s why EFF created an international program in 2004. With the welcome addition of Katitza, we’re looking forward to strengthening our capacity to engage in policy analysis and international advocacy on the growing range of issues involving privacy, trans-border data flows, and cybersecurity.

For continuing developments, read our Deeplinks blog and follow EFF!

The next round of negotiations on ACTA start today in Guadalajara, Mexico. This week’s negotiations will apparently focus on civil enforcement, border measures, and enforcement procedures in the digital environment, and briefly, transparency.

One of the main goals of ACTA is creating new harmonized international IP enforcement standards above those in the 1994 TRIPs agreement. Thirty-seven countries with 37 different national laws are negotiating ACTA, so reaching agreement on new substantive IP enforcement standards will inevitably involve compromises. Some countries will be required to change their national law to bring them closer to other countries’ approaches to IP regulation. Since two of the major powers negotiating ACTA are the US and the European Union (and its 27 Member States), there is much scope for different approaches and disagreements to arise. This is particularly true for Internet intermediary liability — where laws in the US and the various EU Member States take quite different approaches.

Which country prevails in this battle of legal wills will have tremendous consequences for citizens’ access to knowledge and the future of the Internet as a powerful tool for communication, cross-border collaboration and a platform for innovation.

The EU has indicated that it is unwilling to agree to anything that requires changes to European Community law. EU negotiators would probably not be able to do so under their (still secret) negotiation mandate. On January 14, EU Commissioner-delegate for the Digital Agenda, Neelie Kroes stated that “The objective of ACTA negotiations is to provide the same safeguards as the EU did in the telecoms package… So we stick to our line and that’s it.”

For its part, the USTR has repeatedly said that ACTA will only “color within the lines of existing US law”. Indeed, this is the justification for negotiating ACTA as a sole Executive Agreement, therefore bypassing the checks and balances of the usual Congressional oversight process applied to other recent free trade agreements, such as the US-South Korea FTA.

Given this, it is interesting to reflect on the leaked European Commission’s analysis of the US’s Internet Chapter. Although draft text of the Internet chapter has not yet surfaced, the EU analysis discloses what the chapter covers: increased Internet intermediary liability, three strikes Internet disconnection obligations for ISPs, and civil and criminal technological protection measure laws modeled on the US DMCA.

(More after the Jump ..)

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The next round of negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) — the secret copyright treaty that targets the Internet — starts tomorrow in Guadalajara, Mexico. From January 26-29, negotiators from Australia, Canada, the European Union, Japan, Jordan, Mexico, Morocco, New Zealand, the Republic of Korea, Singapore, Switzerland, and the United States will discuss civil enforcement, border measures, enforcement procedures in the digital environment (a.k.a. “the Internet chapter” of ACTA) and transparency.

Today, we’d like to welcome David Fewer, the Acting Director of the Canadian Internet Policy and Public Interest Clinic (CIPPIC), to give us his thoughtful perspective on how ACTA will affect Canadian citizens.

A Canadian View of ACTA

ACTA has been on the radar of CIPPIC since the negotiations for the nebulous trade agreement were first announced. CIPPIC’s very first submission to the Canadian government on the topic (in April of 2008) identified three concerns: (1) venue, (2) process, and (3) substance.

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This week the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights is meeting in Geneva to discuss a proposed treaty intended to increase access to books and other information in formats accessible to the world’s blind, visually impaired and print disabled citizens.

There’s a chronic shortage of accessible format material across the world. In the U.S. it’s estimated that only 5% of published works are available in formats accessible to visually impaired persons. In the U.K. it’s 4% and in India it’s 0.5%. The treaty is intended to address two things that have led to this situation: first, the lack of exceptions in countries’ national copyright laws that would permit creation of accessible format copies of works for the visually impaired without having to seek prior permission from copyright owners; second, uncertainty about the legality of importing and exporting accessible format material created under a national exception or special licence in one country for use by visually impaired citizens in another country. This is an international problem in need of a global solution. As a 1985 report which considered these issues recommended, an international instrument is needed to facilitate the creation and distribution of accessible format material across borders. It requires an international solution.

This afternoon, in a thoughtful and clear statement, the U.S. delegation to WIPO acknowledged the concerns of the visually impaired community and suggested how the international copyright community should proceed in addressing the needs of those with print disabilities.

Key excerpts are below, but the statement is worth reading in its entirety. It is refreshing to see such an influential voice at WIPO come out in support of a balanced system of international copyright law that serves the needs of all the world’s citizens.

Our commitment to reaching an international consensus on copyright exceptions for persons with print disabilities

First, the United States believes that the time has come for WIPO Members to work toward some form of international consensus on basic, necessary limitations and exceptions in copyright law for persons with print disabilities. This international consensus could take multiple forms, including a model law endorsed by the SCCR, a detailed Joint Recommendation to be adopted by the WIPO General Assemblies, and/or a multilateral treaty. The United States is open to discussing and exploring all these options.

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The United States believes that the initial most productive course of action may be a work program that begins with a series of serious, focused consultations aimed at producing a carefully-crafted Joint Recommendation of the Berne Assembly and the WIPO General Assembly. We further believe this initial Joint Recommendation could be a step toward the development of a treaty establishing basic copyright limitations and exceptions for persons with print disabilities.

The first goal of international consensus in this area

In our consultations and review it has become clear to us that the most pressing problem — the one identified repeatedly by experts — is the cross-border distribution of special format materials made for persons with print disabilities, whether these special format materials are made under copyright exceptions in national law or special licensing arrangements. Therefore, the United States believes that our first goal should be to reach international consensus on the free exportation and importation of special format materials for persons with print disabilities in all countries.

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Further international consensus on basic exceptions for print disabilities The United States is also prepared to participate in a WIPO work program to establish further international consensus on specific exceptions and limitations for persons with print disabilities that should be part of national copyright laws.

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A balanced system of international copyright law

We recognize that some in the international copyright community believe that any international consensus on substantive limitations and exceptions to copyright law would weaken international copyright law. The United States does not share that point of view. The United States is committed to both better exceptions in copyright law and better enforcement of copyright law. Indeed, as we work with countries to establish consensus on proper, basic exceptions within copyright law, we will ask countries to work with us to improve the enforcement of copyright. This is part and parcel of a balanced international system of intellectual property.