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By Scott M. Fulton, III, Net1News
This morning from Brussels, the European Parliament issued aformal declaration - its second official legal statement of theseason - calling upon participants in negotiations for the globalAnti-Counterfeiting Trade Agreement to share the status of theirproceedings with the public at large. At issue is whethergovernments can decree that Internet Service Providers (most ofwhich are private businesses) keep track of IP addresses thatcopyright holders believe are involved in infringement andunauthorized distribution, without officially notifying theircitizens they're about to do so.
In fact, the very secrecy of the negotiations themselves couldbe in violation of an essential tenet of European law, called theprincipal of subsidiarity. That principal mandatesthat no law can be passed without it first meeting the test ofwhether it infringes upon the rights of citizens, and that thoserights supersede the needs of government. Keeping thenegotiations secret implies that no such test ever takes place.
<ahref="http://www.laquadrature.net/wiki/Written_declaration_ACTA_12/2010">The declaration itself is short and straightforward. Paragraph 3 in its entirety, for example, states that the EuropeanParliament "takes the view that the proposed agreement should notforce limitations upon judicial due process or weaken fundamentalrights such as freedom of expression and the right to privacy."
Last month, Europe's Commissioner for Trade, Karel de Gucht(Belgium), trained not only a spotlight but a heat lamp on anotherof the continent's key concerns: that new laws mandated by the ACTAwould force European nations to protect intellectual propertyrights that they have yet to formally recognize or pronounce intheir own laws.
"While ACTA aims to establish effective enforcement standardsfor existing intellectual property rights," reads a jointdeclaration issued August 22 from Washington, and co-signed byComm. de Gucht, "it is not intended to include new intellectualproperty rights or to enlarge or diminish existing intellectualproperty rights." De Gucht was in Washington at theinvitation of the United States, for a conference intended toaddress certain unstated concerns negotiating members (alsoincluding Australia, Canada, Japan, Korea, Mexico, Morocco, NewZealand, Singapore, and Switzerland) may have about the USposition.
De Gucht did not have to say so expressly, but his statementimplied what most everyone else following the ACTA already knows:that it's the US that wants to keep a lid on talks. Theoutcome of those talks, although also not stated expressly, can beinferred from Paragraph 1 of this morning's declaration: TheEuropean Parliament "takes the view that the proposed agreementshould not indirectly impose harmonisation of EU copyright, patentor trademark law, and that the principle of subsidiarity should berespected."
By "harmonisation" (spelled with an "s" rather than a "z" inBritish English), the EP here refers to making European copyrightlaw more compatible with American and Asian law. That's aprocess that the EP would prefer happen organically, throughcareful deliberation and debate, rather than a sudden andinescapable need to comply with directives enforced upon it by aforeign country.
Last April, a month after <ahref="http://www.betanews.com/article/Strongest-condemnation-yet-of-anticounterfeiting-three-strikes-from-EU/1268242864">the EP passed a resolution compelling member nations in theACTA negotiations to produce at least a status report, <ahref="http://www.betanews.com/article/Latest-ACTA-draft-finally-released-ISP-safe-harbor-limitations-considered/1271880147">a redacted version of the draft treaty was released. Thatversion appeared to validate previously leaked copies of the drafttreaty, including versions that would have held ISPs jointly liablefor copyright infringements, when it appears that those ISPs hadnot taken preventative measures approved by rights holders, such asmovie studios. The April draft uses punctuation, such as[square brackets], to make clear that these more controversialprovisions remain optional, and have yet to be adopted by amajority of negotiators.
On Monday, a Texas-based consulting firm whose connection to thenegotiations, if it exists at all, is questionable, leaked whatappears to be a list of extensive revisions (<ahref="http://keionline.org/sites/default/files/acta_aug25_dc.pdf">PDFavailable here) to the April draft, completed during the Augustmeeting attended by Comm. de Gucht. If verified, the latestleak does indicate complete replacement of many of the morecontroversial paragraphs from the April draft.
However, the replacement text - again, if the leak is genuine -would, contrary to reports that accompanied the leak itself, compelmember countries to let rights holders request "the information ofthe relevant subscriber" in conjunction with their owninvestigations, and to give those investigations legal precedenceand protection. Although the active verb here is "may" -implying perhaps a softening of the rhetoric - the text of what'snow being called Section 4, Article 2.18, Paragraph 4 clearlystates such investigations would have access to personalinformation. That means not just the IP address of thecomputers involved, which is what earlier drafts implied, butnames, addresses, phone numbers - personally identifiabledata (PID).
It isn't that EU member nations are necessarily opposed toholding ISPs jointly accountable. Beginning last April andproceeding through June, the UK rolled out provisions for its <ahref="http://www.betanews.com/article/UK-Lords-pass-bill-to-create-Internet-antipiracy-enforcement-office/1268754986">recently passed Digital Economy Bill, one measure of whichprompts British ISPs to maintain records of which IP addressesrights holders suspect as being involved in infringement. However, <ahref="http://www.lawgazette.co.uk/in-practice/the-digital-economy-act-2010-and-online-copyright-infringement">as the British Law Society Gazette reported thismorning, Ofcom - the UK's communications industry regulator,and counterpart to the US' FCC - is presently consideringexceptions to the new law that would exempt the country's largestISPs - those with 400,000 subscribers or more - from having to keepthose records.
This article originally appeared in Net1News.
©Copyright 2010 Ingenus, LLC.
©Copyright 2010 BetaNews, Inc.
Copyright Betanews, Inc. 2010
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Anti-Counterfeiting Trade Agreement - Intellectual property - United States - Copyright - Internet service provider[IMG]http://feeds.feedburner.com/~ff/bn?d=yIl2AUoC8zA[/IMG] [IMG]http://feeds.feedburner.com/~ff/bn?i=pNxcxP7XKgo:iqG81YL74-I:V_sGLiPBpWU[/IMG] [IMG]http://feeds.feedburner.com/~ff/bn?d=qj6IDK7rITs[/IMG]
This morning from Brussels, the European Parliament issued aformal declaration - its second official legal statement of theseason - calling upon participants in negotiations for the globalAnti-Counterfeiting Trade Agreement to share the status of theirproceedings with the public at large. At issue is whethergovernments can decree that Internet Service Providers (most ofwhich are private businesses) keep track of IP addresses thatcopyright holders believe are involved in infringement andunauthorized distribution, without officially notifying theircitizens they're about to do so.
In fact, the very secrecy of the negotiations themselves couldbe in violation of an essential tenet of European law, called theprincipal of subsidiarity. That principal mandatesthat no law can be passed without it first meeting the test ofwhether it infringes upon the rights of citizens, and that thoserights supersede the needs of government. Keeping thenegotiations secret implies that no such test ever takes place.
<ahref="http://www.laquadrature.net/wiki/Written_declaration_ACTA_12/2010">The declaration itself is short and straightforward. Paragraph 3 in its entirety, for example, states that the EuropeanParliament "takes the view that the proposed agreement should notforce limitations upon judicial due process or weaken fundamentalrights such as freedom of expression and the right to privacy."
Last month, Europe's Commissioner for Trade, Karel de Gucht(Belgium), trained not only a spotlight but a heat lamp on anotherof the continent's key concerns: that new laws mandated by the ACTAwould force European nations to protect intellectual propertyrights that they have yet to formally recognize or pronounce intheir own laws.
"While ACTA aims to establish effective enforcement standardsfor existing intellectual property rights," reads a jointdeclaration issued August 22 from Washington, and co-signed byComm. de Gucht, "it is not intended to include new intellectualproperty rights or to enlarge or diminish existing intellectualproperty rights." De Gucht was in Washington at theinvitation of the United States, for a conference intended toaddress certain unstated concerns negotiating members (alsoincluding Australia, Canada, Japan, Korea, Mexico, Morocco, NewZealand, Singapore, and Switzerland) may have about the USposition.
De Gucht did not have to say so expressly, but his statementimplied what most everyone else following the ACTA already knows:that it's the US that wants to keep a lid on talks. Theoutcome of those talks, although also not stated expressly, can beinferred from Paragraph 1 of this morning's declaration: TheEuropean Parliament "takes the view that the proposed agreementshould not indirectly impose harmonisation of EU copyright, patentor trademark law, and that the principle of subsidiarity should berespected."
By "harmonisation" (spelled with an "s" rather than a "z" inBritish English), the EP here refers to making European copyrightlaw more compatible with American and Asian law. That's aprocess that the EP would prefer happen organically, throughcareful deliberation and debate, rather than a sudden andinescapable need to comply with directives enforced upon it by aforeign country.
Last April, a month after <ahref="http://www.betanews.com/article/Strongest-condemnation-yet-of-anticounterfeiting-three-strikes-from-EU/1268242864">the EP passed a resolution compelling member nations in theACTA negotiations to produce at least a status report, <ahref="http://www.betanews.com/article/Latest-ACTA-draft-finally-released-ISP-safe-harbor-limitations-considered/1271880147">a redacted version of the draft treaty was released. Thatversion appeared to validate previously leaked copies of the drafttreaty, including versions that would have held ISPs jointly liablefor copyright infringements, when it appears that those ISPs hadnot taken preventative measures approved by rights holders, such asmovie studios. The April draft uses punctuation, such as[square brackets], to make clear that these more controversialprovisions remain optional, and have yet to be adopted by amajority of negotiators.
On Monday, a Texas-based consulting firm whose connection to thenegotiations, if it exists at all, is questionable, leaked whatappears to be a list of extensive revisions (<ahref="http://keionline.org/sites/default/files/acta_aug25_dc.pdf">PDFavailable here) to the April draft, completed during the Augustmeeting attended by Comm. de Gucht. If verified, the latestleak does indicate complete replacement of many of the morecontroversial paragraphs from the April draft.
However, the replacement text - again, if the leak is genuine -would, contrary to reports that accompanied the leak itself, compelmember countries to let rights holders request "the information ofthe relevant subscriber" in conjunction with their owninvestigations, and to give those investigations legal precedenceand protection. Although the active verb here is "may" -implying perhaps a softening of the rhetoric - the text of what'snow being called Section 4, Article 2.18, Paragraph 4 clearlystates such investigations would have access to personalinformation. That means not just the IP address of thecomputers involved, which is what earlier drafts implied, butnames, addresses, phone numbers - personally identifiabledata (PID).
It isn't that EU member nations are necessarily opposed toholding ISPs jointly accountable. Beginning last April andproceeding through June, the UK rolled out provisions for its <ahref="http://www.betanews.com/article/UK-Lords-pass-bill-to-create-Internet-antipiracy-enforcement-office/1268754986">recently passed Digital Economy Bill, one measure of whichprompts British ISPs to maintain records of which IP addressesrights holders suspect as being involved in infringement. However, <ahref="http://www.lawgazette.co.uk/in-practice/the-digital-economy-act-2010-and-online-copyright-infringement">as the British Law Society Gazette reported thismorning, Ofcom - the UK's communications industry regulator,and counterpart to the US' FCC - is presently consideringexceptions to the new law that would exempt the country's largestISPs - those with 400,000 subscribers or more - from having to keepthose records.
This article originally appeared in Net1News.
©Copyright 2010 Ingenus, LLC.
©Copyright 2010 BetaNews, Inc.
Copyright Betanews, Inc. 2010
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