Red Sin Censura, published an Internet in Danger page the other day, which pointed me at Le Monde’s “What’s wrong with ACTA”. This has been worrying me, since much of the opposition has been based solely on secrecy, although this bleeds into democratic oversight. Since the treaty has been negotiated primarily between democracies and their politicians and public servants, to me secrecy alone is not sufficient to win broad support to opposition to the proposed treaty; there’s a lot of people that trust their politicians.

However, between Red Sin Censura and the Le Monde article, I’d say there’s a lot more ammunition and reason to oppose the EU and member states signing the ACTA treaty. The remainder of this article, precises the L’Monde article, which points out that ACTA is an international trade agreement,

  • negotiated outside the world trade agreement infrastructure, deliberately because the developing country agenda differs and diverges from monopoly capitalism, and they, i.e. the developing countries,  have a majority in the UN infrastructure, and were excluded from the negotiating table
  • in which the copyright corporations were on the inside track and ACTA embeds their privilege, it’s the pursuit of these privileges that required the negotiations to be secret; these privileges include the right to determine infringer’s penalties,the right to determine the ‘loss’, and the prohibition and constraining  of ISP safe harbour defences, all extend copyright privilidge.
  • which creates its own maintenance infrastructure. Treaties constrain national sovereignty, ACTA signatories will find it very hard to change their mind.
  • which is unlikely to be signed by either its authors (the USA) nor its main targets (the BRIC countries), so why the hell should we sign it.

The Le Monde article argues that,

ACTA is an attempt to bypass multilateral institutions”.

The article looks at the role of the World Trade Organisation and the World Intellectual Property Organisation, both United Nations NGOs, that until the launch of the ACTA negotiations were the centre of international agreements on intellectual property law. The push for ACTA was started three weeks after WIPO announced its “Development Agenda”, which recognises the complexity of balancing the interests of the world’s citizens and participants in intellectual property markets and possibly made it much easier for NGO accreditation. According to Le Monde, the WIPO recognised the fundamental human rights interests in the debate around intellectual property law. Copyright holders wanted to focus on enforcement, developing economy governments and the WIPO wanted to focus on definition. Having lost in the UN, copyright holders and their agents, the US Trade Representative, started an initiative to get what they wanted.

Negotiations were a secret to the general public, while corporations were well informed”.

More than this, major efforts were made to avoid democratic scrutiny and the citizen’s participation utilizing the sort of tactics that those used to the factional politics of the 70/80’s student movement will easily recognise. This stupidity is the reason why in the EU, further democratic scrutiny in the European Parliament is legitimate and essential.

Developing Countries were excluded from negotiations, even though they are the target of the new norms.”

Le Monde speaks about the UN’s Right to Development and ACTA’s sponsors’ and negotiators’ flagrant disregard of the interests of the developing world. I suggest their response is almost certainly to be to refuse to sign up to the treaty. Glyn Moody reports on the likelihood of China & India signing in his techdirt article, “Why The Chances of China Joining ACTA Or TPP Are Practically Zero”.

The ACTA norms are restrictive, unfair, and undermine or eliminate flexibilities in intellectual property laws that are needed to protect the public interest”.

Let’s hope so, the ECJ will strike it down. It copies the right holder’s global initiative of giving themselves enhanced rights in the enforcement arena, for instance defining the loss caused by piracy as that stated by the rights holder. Furthermore Le Monde states that,

Right holders are given asymmetric rights as regards discovery against real or merely alleged infringers.”

and also places constraints on law makers in protecting the rights of internet service providers, and new entrants to the internet services markets. It provides for preferential treatment of rights holders, and even choice in the selection of remedies, it prohibits Governments from protecting even in a limited way, the rights of the online service providers. ACTA also allows for rights holders to have the last word on the loss caused by infringing activity i.e. the monopoly price charged by the rights holder. This is chilling stuff, I strongly recommend you read it. [Here], you’ll need to scroll down.

ACTA makes it more difficult to implement liability rules, in cases where the public should have more freedom to use protected goods.”

Le Monde’s words, to expose the increasing restriction on the use of orphaned works and the ongoing “enclosure”. Knowledge Ecology International have issued a briefing on ACTA, Orphaned Works and Damages. The problem that creates orphaned works is that copyright is “strict” and no longer requires to be declared. Thus content is copyrighted by default, and strict liability means that its use is prohibited without rightsholders’ agreement. If the rightsholder cannot be identified, then the content can’t be legally used. You can imagine; ACTA requires both damages to increase, and that all legal fees are to be borne by infringers; innovators won’t take the risk. Most attempts to solve the orphan works problem have involved weakening strictness and reducing damages.

The secret process that created ACTA sought to establish a new captured institution that will advance right holder interests through both hard and soft norms.”

To me the drop dead reason for refusing to sign. Any amendment, becomes virtually impossible. What this means is that there will be a non democratic organisation that determines the changes permitted, and no MP’s, no MEPs, no EU Commissioners, no elected officials will be able to influence the future of world wide intellectual property law. Copyright maximalists want everything, and the want it for ever.

The United States does not consider itself bound by ACTA, but will seek to impose ACTA on developing countries.”

If India, China, Brazil aren’t signing the treaty, and the USA aren’t signing, why should the EU and its member states do so? Even more important, why sign first?

Neither the UK, nor the EU should sign ACTA
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