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    Michael Geist's Blog

    Joint European Parliament ACTA Transparency Resolution Tabled, Vote on Wednesday

    A joint resolution on Transparency and State of Play of ACTA negotiations from virtually all party groups in the European Parliament was tabled earlier today.  It will debated tonight and faces a vote on Wednesday.  If approved, the resolution marks a major development in the fight over ACTA transparency.  It calls for public access to negotiation texts and rules out further confidential negotiations.  Moreover, the EP wants a ban on imposing a three-strikes model, assurances that ACTA will not result in personal searchers at the border, and an ACTA impact assessment on fundamental rights and data protection.  The full resolution:


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    European ACTA Pressure Intensifies: Transparency Demands, EP Resolution

    Europe has become the centre of a storm over the Anti-Counterfeiting Trade Agreement.  Late last week, the Government of Sweden announced that the European Union was now uniformally seeking ACTA transparency.  The announcement came just days after the Dutch leak that identified the specific countries opposed to a transparent approach.  The revelations appear to have had a significant impact as all European Union countries are now said to support release of the ACTA text.

    This week the issue hits the European Parliament that includes an ACTA debate on Tuesday, followed by a landmark resolution that will be on the table on Wednesday.   At the moment, there are two competing resolutions.  One resolution promoted by an alliance of the Liberal and Green Party, includes the following:


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    Clement on Copyright: A Made-in-Canada Approach

    In the immediate aftermath of yesterday's Speech from the Throne, some copyright watchers claimed that it foreshadowed the return of a Canadian DMCA, pointing to language that promises to "strengthen laws governing intellectual property and copyright."  While the return of Bill C-61 is a possibility, comments from Industry Minister Tony Clement immediately afterward suggest that he is not a mirror image of his predecessor Jim Prentice. 

    Clement has spoken frequently on the need for forward-looking legislation and launched a major copyright consultation effort last summer.  Yesterday, he was asked specifically about copyright and U.S. claims that Canada is a copyright outlaw on CTV's Power Play.  His response:

    I've been pretty clear to the Americans and in my public statements that we are moving ahead with copyright reform.  The key is, from the American perspective, they want us to be part of WIPO, which is an international treaty on protecting intellectual property.  We don't have a problem with that, but we're going to do it in a made-in-Canada way.  We're not just going to take what the Americans are doing or what the Europeans are doing.  We are going to fit it to the Canadian context and I think that is the right thing to do.


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    Speech From the Throne: Digital Strategy, Copyright, Open Telecom, Lawful Access, & Cybersecurity

    Today's Speech from the Throne, which sets out the government's agenda for coming Parliamentary session, includes a considerable number of digital issues.  These include:
    • a digital economy strategy: "a digital economy strategy to drive the adoption of new technology across the economy"
    • copyright reform: "to encourage new ideas and protect the rights of Canadians whose research, development and artistic creativity contribute to Canada’s prosperity, our Government will also strengthen laws governing intellectual property and copyright."
    • open telecom to foreign investment: "open Canada’s doors further to venture capital and to foreign investment in key sectors, including the satellite and telecommunications industries"
    • lawful access: "introduce legislation to give police investigative powers for the twenty-first century."
    • cybersecurity: "working with provinces, territories and the private sector, our Government will implement a cyber-security strategy to protect our digital infrastructure."

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    Parliamentary Restart Offers Chance to Prioritize Digital Agenda

    Parliament resumes this week with the Speech from the Throne today following the unexpected - and unexpectedly contentious - decision by Prime Minister Stephen Harper to reset the legislative agenda through prorogation.  The House of Commons may have been quiet but my weekly technology law column (Toronto Star version, homepage version) notes the calls for a national digital strategy have grown louder in recent months.  Last week, the International Telecommunications Union issued its annual global measurement of the information society, which served again to highlight Canada’s sinking global technology ranking.  Canada ranked 21st (down from 18th in 2007) in its ICT Development Index, which groups 11 indices including access, use, and technology skills.  

    Canada’s sliding global ranking reflects 10 years of policy neglect.  Other countries prioritized digital issues while leaders here from all parties have been content to rest on the laurels of the late 1990s, only to wake up to a new, less-competitive reality in 2010.

    Industry Minister Tony Clement has spoken frequently about the need for a national digital strategy, but concrete policies have been slow in coming.  The parliamentary restart presents another opportunity for action.  Given the failure to date to articulate a comprehensive digital strategy, perhaps a different approach might work. Following the Speech from the Throne and the budget, there will be about 100 days until the summer break.  Clement could set a series of realizable targets during those 100 days.  Such targets would not solve ongoing concerns regarding the competitiveness of Canada’s wireless sector or the findings that Canadians pay higher prices for slower Internet speeds than consumers in many other countries, but some momentum could be gained and some quick wins achieved.

    A 100-day digital agenda could have four components: new laws, new initiatives, new enforcement, and new policy development.


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    Canada vs. New Zealand at the ACTA Talks

    Yesterday's ACTA leak that provides full detail on each country's negotiation position attracted immediate media attention, with the New Zealand press picking up on the story (and that country's tough position), while the Australian press lamented their country's relative silence at the negotiation table.  And what of Canada?  The Canadian positions on the Internet chapter culled from the EU leaked document are:
    • expresses concern with the disparity between the section title and the scope of content of the section
    • seeks clarification of the scope of "related rights" in provision dealing with a general enforcement obligation. Argues that it should be consistent with the Criminal and Civil Enforcement chapters
    • concerns with a footnote on third party liability that seeks to define its scope.  Canada notes that the footnote effectively changes the meaning of the main text.
    • seeks more information on the scope of "modification" to the content in a provision on online service providers
    • notes that the relationship between third party liability and ISP limitation on liability is unclear
    • seeks clarification of the relationship of anti-circumvention exceptions to access control measures
    That's it.  Compare the Canadian focus on clarifications of legal language and hints at opposition with the far-tougher, more explicit New Zealand positions:

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    Major ACTA Leak: Internet and Civil Enforcement Chapters With Country Positions

    On the heels of the leak of various country positions on ACTA transparency, today an even bigger leak has hit the Internet.  A new European Union document prepared several weeks ago canvasses the Internet and Civil Enforcement chapters, disclosing in complete detail the proposals from the U.S., the counter-proposals from the EU, Japan, and other ACTA participants.  The 44-page document also highlights specific concerns of individual countries on a wide range of issues including ISP liability, anti-circumvention rules, and the scope of the treaty.  This is probably the most significant leak to-date since it goes even beyond the transparency debate by including specific country positions and proposals.

    The document highlights significant disagreement on a range of issues.  For example, on the issue of anti-circumvention legislation and access controls, the U.S. wants it included per the DCMA, but many other countries, including the EU, Japan, and New Zealand do not, noting that the WIPO Internet treaties do not require it.

    A brief summary of the key findings are posted below, but much more study is needed.

    Internet Enforcement Chapter


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    Globe on Benkler Study and Upcoming Keynote at U of Ottawa

    The Globe and Mail covers Friday's University of Ottawa's Centre for Law, Technology and Ethics launch conference.  The event includes a keynote from Harvard Law School's Yochai Benkler, the author of a recent FCC-commissioned study on broadband networks worldwide.  Benkler's conclusions on Canada have generated considerable discussion and should be a great way to start the day.  The remainder of the day should also be great - panels on open government, the use of mapping technologies, and the privacy, gender and ethical implications of social networks such as Facebook.  The conference includes lunch and a post-conference reception, all at no cost for students and a nomimal fee for everyone else.  There is still time to register, so do so today!
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    The ACTA Transparency Scorecard

    With yesterday's leak of a Dutch government document revealing the positions on ACTA transparency of many of the negotiating partners, it is worth taking stock of the current positions on the issue:


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    New ACTA Leak: U.S., Korea, Singapore, Denmark Do Not Support Transparency

    Throughout the debate over ACTA transparency, many countries have taken public positions that they support release of the actual text, but that other countries do not.  Since full transparency requires consensus of all the ACTA partners, the text simply can't be released until everyone is in agreement.  Of course, those same countries hasten to add that they can't name who opposes ACTA transparency, since that too is secret.

    No longer. In an important new leak from the Netherlands (Dutch, Google English translation, better English translation), a Dutch memorandum reporting back on the Mexico ACTA negotiation round names names, pointing specifically to which countries support releasing the text and which do not (note that the memo does not canvass everyone - Canada, Australia, and New Zealand are known to support transparency but are not named in the memo).  According to the Dutch memo, the UK has played a lead role in making the case for full disclosure of the documents and is of the view that there is consensus for release of the text (there is support from many countries including the Netherlands, Sweden, Finland, Ireland, Hungary, Poland, Estonia, and Austria).  However, the memo indicates that several countries are not fully supportive including Belgium, Portugal, Germany, and Denmark.  Of these four countries, the Dutch believe that Denmark is the most inflexible on the issue.

    Outside of the Europe, the memo identifies three problem countries.  While Japan is apparently supportive, both South Korea and Singapore oppose ACTA transparency.  Moreover, the U.S. has remained silent on the issue, as it remains unconvinced of the need for full disclosure.  In doing so, it would appear that the U.S. is perhaps the biggest problem since a clear position of support might be enough to persuade the remaining outliers.


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