Prime Minister Harper will be answering questions on YouTube over the next week, providing a chance to raise digital strategy issues in a digital environment Mar.10/10Comments (0)
The Australian government has stated that it does not expect to make any changes to its domestic laws due to ACTA, hoping to persuade others to follow the Australian approach. Mar.10/10Comments (1)
InternetNZ has just announced that I will be the keynote speaker at PublicACTA, an ACTA conference scheduled just prior to the next round of ACTA negotiations in Wellington, NZ. Mar.10/10Comments (1)
Google, Yahoo, Facebook and Ebay, along with the UK's largest internet service providers, are arguing that changes to the UK Digital Economy bill poses a theat to free speech. Mar.10/10Comments (0)
The government appears to be backtracking on quickly opening the Canadian telecom market to foreign investment. Industry Minister Tony Clement's press secretary now says "our government will also be investigating the existing restrictions for the telecommunications industry. This is a complex issue involving changes to business models, rapidly evolving technology, and existing legislation, such as the 1993 Telecommunications Act." Mar.09/10Comments (5)
The Globe and Mail reports that the Canadian Bookseller Association is urging the government to block Amazon.com from building a distribution network in Canada. Mar.09/10Comments (6)
Quill and Quire reports that Access Copyright has made significant changes in the way it distributes is funds. Eligible creators will now receive payments based on quantity of their output. Mar.09/10Comments (0)
Richard Poynder, who covers open access issues in great detail, has posted a detailed interview with me on ACTA and its implications for open access and IP policy. Mar.08/10Comments (0)
The European Parliament today overwhelming approved a resolution on ACTA calling for transparency and raising concerns about substantive elements in the treaty such as the prospect of three strikes and personal border searches. The final vote was 633 in favour, 13 against, and 16 abstentions. The final approved text raises further issues:
the European Parliament "deplores the calculated choice of the parties not to negotiate through well-established international bodies, such as WIPO and WTO, which have established frameworks for public information and consultation"
It says "further ACTA negotiations should include a larger number of developing and emerging countries, with a view to reaching a possible multilateral level of negotiation"
provides that "any agreement must include the stipulation that the closing-off of an individual’s Internet access shall be subject to prior examination by a court"
warns that "ACTA provisions, notably measures aimed at strengthening powers for cross-border inspection and seizure of goods, should not affect global access to legitimate, affordable and safe medicinal products – including innovative and generic products – on the pretext of combating counterfeiting"
As for next steps, the European Parliament clearly wants action as the resolution also states that it "stresses that, unless Parliament is immediately and fully informed at all stages of the negotiations, it reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives." This marks a major step toward ACTA transparency, highlighting the near-unanimous discomfort with the process and substance of ACTA to date.
With the increasing shift from analog to digital, some elections officials are unsurprisingly chomping at the bit to move toward Internet-based voting. My weekly technology law column (Toronto Star version, homepage version) notes that last year, Elections Canada officials mused about the possibility of online voting trials, noting the potential benefits of increasing voter participation, particularly among younger demographics.
More recently, the province of Alberta opened the door to incorporating new technologies into their voting processes as part of an electoral reform package. New trials would require the approval of a legislative committee, but the province's Chief Electoral Officer acknowledged that online voting may be coming, noting "online voting is something that's on the forefront of people's minds. . . people say, 'I can do my banking online, but I can't do my voting online'."
The enthusiasm for Internet voting is understandable. At first blush, there is a certain allure associated with the convenience of Internet voting, given the prospect of increased turnout, reduced costs, and quicker reporting of results. Moreover, since other security sensitive activities such as banking and health care have gravitated online, supporters argue that elections can't be far behind. Yet before rushing into Internet voting trials, the dangers should not be overlooked.
Democracy depends upon a fair, accurate, and transparent electoral process with outcomes that can be independently verified. Conventional voting accomplishes many of these goals – private polling stations enable citizens to cast their votes anonymously, election day scrutineers offer independent oversight, and paper-based ballots provide a verifiable outcome that can be re-counted if necessary.
While technology may someday allow us to replicate these essential features online, many of them are currently absent from Internet voting, which is subject to any number of possible disruptions. These include denial of service attacks that shut down the election process, counterfeit websites, phishing attacks, hacks into the election system, or the insertion of computer viruses that tamper with election results.
These concerns are based on real-world experience. The Internet Corporation for Assigned Names and Numbers (ICANN), the organization that administers the domain name system, ran an online board of director election in 2000. The experience was fraught with technical difficulties, leading a reviewer to conclude "the technical weakness in the registration system made it virtually impossible to assess the integrity of the voters' list, the security of the PINs, and secrecy of vote."
More recently, the Netherlands used Internet voting as part of its 2006 parliamentary elections. The online option was an alternative for Dutch citizens working or living abroad. Nearly 20,000 valid Internet votes were received at a cost of approximately 90 euros per Internet voter. Two years later, the country implemented a ban on Internet voting.
The Canadian experience is limited primarily to municipal elections. Several Ontario municipalities have offered Internet-based voting, enabling local residents to vote without leaving their homes. Residents were required to pre-register for Internet voting and were provided with detailed instructions on the technical requirements to "vote anywhere."
Caution on Internet voting appears prudent, since experts have identified a long and costly list of necessary precautions, including random spot checks and post-vote verification programs to preserve anonymity. Given the security risks, opening the door to provincial or federal Internet voting seems premature. In the zeal to increase voter turnout, the reliance on Internet voting could inadvertently place the validity of the election process at risk.
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: Read More ...
The European Parliament, – having regard to Articles 207 and 218 TFEU - having regard to its Resolution of 9 February 2010 on a "Renewed Framework Agreement between the Parliament and the Commission for the next legislative term" (B7-0091/2010) – having regard to its Resolution of 11 March 2009 on "Public access to European Parliament, Council and Commission documents (recast)" to be considered as Parliaments position in First Reading (COM(2008)0229 – C6-0184/2008 – 2008/0090(COD)) – having regard to its Resolution of 18 December 2008 on "the impact of counterfeiting on international trade" (2008/2133(INI)) - having regard to the Opinion of the European Data Protection Supervisor of 22 February 2010 on "the current negotiations by the European Union of an Anti-Counterfeiting Trade Agreement (ACTA)" - having regard to the Charter of Fundamental Rights of the European Union, and in particular its Article 8, - having regard to Directive 2002/58/EC of European Parliament and Council concerning the processing of personal data and the protection of privacy in the electronic communications sector, as last amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 - having regard to Directive 2000/31/EC of European Parliament and Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on Electronic Commerce) - having regard to Rule 110 of its Rules of Procedure,
A. whereas in 2008 the European Union and other OECD countries opened negotiations on a new plurilateral agreement designed to strengthen the enforcement of Intellectual Property Rights (IPRs) and combat counterfeiting and piracy (Anti-Counterfeiting Trade Agreement - ACTA), and jointly agreed on a confidentiality clause,
B. whereas in its report of 11 March 2009 Parliament called on the Commission to "immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available",
C. whereas the Commission on 27 January 2010 assured its commitment to a reinforced association with Parliament in the terms of its Resolution of 9 February 2010 on a renewed Framework Agreement with the Commission, demanding "immediate and full information at every stage of negotiations on international agreements, in particular on trade matters and other negotiations involving the consent procedure, to give full effect to Article 218 TFEU",
D. whereas Council representatives have attended ACTA negotiation rounds alongside with Commission representatives,
E. whereas the Commission as guardian of the Treaties is obliged to uphold the acquis communitaire when negotiating international agreements affecting legislation in the EU,
F. whereas, according to documents leaked, the ACTA negotiations touch, among others, on pending EU legislation regarding the enforcement of IPRs (COD/2005/0127, Criminal measures aimed at assuring the enforcement of intellectual property rights, (IPRED-II)) and the so-called "Telecom Package", and on existing EU legislation regarding E-Commerce and data protection,
G. whereas the ongoing EU efforts to harmonise IPR enforcement measures should not be circumvented by trade negotiations which are outside the scope of the normal EU decision-making processes,
H. whereas it is crucial to ensure that the development of IPR enforcement measures is accomplished in a manner that does not impede innovation or competition, undermine IPR limitations and personal data protection, restrict the free flow of information, or unduly burden legitimate trade,
I. whereas any agreement reached by the European Union on ACTA must comply with the legal obligations imposed on the EU with respect to privacy and data protection law, as notably set forth in Directive 95/46/EC, in Directive 2002/58/EC and in the jurisprudence of the European Court of Human Rights and of the Court of Justice,
J. whereas the Treaty of Lisbon is in force since 1 December 2009,
K. whereas as a result of the entry into force of the Lisbon Treaty, the Parliament will have to give its consent to the ACTA Treaty text, prior to its entry into force in the EU,
L. whereas the Commission committed itself to provide immediate and full information to the European Parliament at every stage of negotiations on international agreements,
1. Reminds that the Commission has since the 1 December 2009 the legal obligation to immediately and fully inform the European Parliament at all stages of international negotiations;
2. Expresses its concern over the lack of a transparent process in the conduct of the ACTA negotiations which contradicts the letter and the spirit of the TFEU; is deeply concerned that no legal base has been established before the start of the ACTA negotiations and that no parliamentary approval has been asked for the mandate;
3. Calls on the Commission and Council to grant public and parliamentary access to ACTA negotiation texts and summaries in accordance with the Treaty and the Regulation 1049/2001 on Public Access to Documents;
4. Calls on the Commission and Council to pro-actively engage with ACTA partners to rule out any further negotiations of an a piori confidential nature and to timely and entirely inform Parliament about its initiatives in this regard; expects the Commission to make proposals already prior to the next negotiation round in New Zealand in April 2010 and to demand that the issue of transparency is put on the agenda of that meeting, and to refer to Parliament the outcome of this round immediately after its conclusion;
5. Stresses that, unless the Parliament is immediately and fully informed at all stages of the negotiations, Parliament reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives;
6. Calls on the Commission to conduct an impact assessment of ACTA's implementation on fundamental rights and data protection, on the ongoing EU efforts to harmonise IPR enforcement measures, and on E-Commerce, prior to any EU agreement to a consolidated ACTA treaty text, and to timely consult with Parliament about the results of this assessment;
7. Welcomes affirmations by the Commission that any ACTA agreement will be limited to the enforcement of existing IPRs, with no prejudice for the development of substantive IP law in the European Union;
8. Calls on the Commission to continue the negotiations on ACTA in order to improve the effectiveness of the IPR enforcement system against counterfeiting;
9. Urges the Commission to ensure that the enforcement of ACTA provisions - especially its provisions on copyright enforcement procedures in the digital environment - are fully in line with the acquis communitaire; demands that no personal search is undertaken at the EU borders and requests full clarification of any clauses that would allow for warrantless searches and confiscation of information storage devices, such as laptops, cell phones and MP3 players, by border and customs authorities;
10. Considers that in order to respect fundamental rights such as freedom of expression and the right to privacy, with full respect for subsidiarity, the proposed Agreement must refrain from imposing any so called "three strikes" procedures, in full respect of the decision of Parliament on article 1.1b in the (amending) Directive 2009/140/EC that calls to insert a new para 3 a to article 1 Directive 2002/21/EC on the matter of "three strikes"
11. Emphasizes that privacy and data protection are core values of the European Union, recognised in Article 8 ECHR and Articles 7 and 8 of the EU Charter of Fundamental Rights, which must be respected in all the policies and rules adopted by the EU pursuant to Article 16 of the TFEU;
12. Instructs its President to forward this resolution to the Commission, the Council and the Governments and Parliaments of ACTA negotiation participants.
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:
1. Expresses its utmost concern over the lack of a transparent process in the conduct of the ACTA negotiations, which contradicts the letter and the spirit of the TFEU;
2. Is of the opinion that legitimate arguments for non-disclosure do not exist with regard to international negotiations on the enforcement of intellectual property rights or similar issues, which are legislative in character and have an impact on fundamental rights; maintains that the negotiating position of the EU or other negotiating parties is not circumscribed if information about the negotiations is available to the European Parliament and the general public;
3. Regrets the calculated choice of the parties not to negotiate through well-established international bodies, such as the WIPO and WTO, which have established frameworks of public information and consultations;
4. Calls on the Commission to grant Parliament access to all primary texts relating to ACTA, in particular the ACTA negotiation mandate by the Council, the minutes of ACTA negotiation meetings, the draft chapters of ACTA, and the comments of ACTA participants on the draft chapters;
5. Acknowledges that, in addition to the clear legal obligation to inform Parliament, the ACTA documents should also be available to the general public in the EU and in the other countries participating in the negotiations; understands the wide public criticism of the secrecy of the ACTA negotiations as a clear signal of the political unsustainability of the negotiation procedure chosen;
6. Calls on the Commission to engage proactively with ACTA negotiation partners to cancel any previous formal or informal internal agreements on the confidential nature of the conduct of the negotiations and to inform Parliament about its initiatives in this regard in due course; expects the Commission to make proposals prior to the next negotiation round in New Zealand in April 2010 and to demand that the issue of transparency is put on the agenda of that meeting;
7. Reminds the Commission that if it does not provide Parliament with immediate and full information about the negotiations in accordance with Art. 218 TFEU before the next round of negotiations in April, Parliament will have no choice but to bring an action in accordance with Art. 263 TFEU for infringement of the Treaties to the Court of Justice of the European Union;
8. Calls on the Commission to conduct an impact assessment of the implementation of ACTA with regard to fundamental rights and data protection, ongoing EU efforts to harmonise IPR enforcement measures, e-commerce and the possible impact of ACTA on fundamental rights and the rule of law in third – especially developing – countries, prior to any EU agreement on a consolidated ACTA treaty text, and to consult with Parliament in a timely manner about the results of this assessment;
9. Welcomes affirmations by the Commission that any ACTA agreement will be limited to the enforcement of existing IPRs, with no prejudice for the development of substantive IP law in the European Union; makes any possible assent to the ACTA agreement conditional to the full respect of this affirmation;
10. Urges the Commission to ensure that the enforcement of ACTA provisions - especially those on copyright enforcement procedures in the digital environment - are fully in line with the letter and the spirit of the acquis communautaire and do not imply ‘self-regulatory’ measures being imposed by private companies outside the scope of democratic decision-making processes; considers that Internet service providers should not bear liability for the data they transmit or host through their services to an extent that would imply prior surveillance or filtering of such data;
11. Emphasises that privacy and data protection are core values of the European Union, recognised in Article 8 ECHR and Articles 7 and 8 of the EU Charter of Fundamental Rights, which must be respected in all the policies and rules adopted by the EU pursuant to Article 16 of the TFEU;
12. Points out that any measure aimed at strengthening powers for cross-border inspection and seizures of goods should not harm global access to legal, affordable and safe medicines;
13. Instructs its President to forward this resolution to the Commission, the Council and the governments and parliaments of countries participating in ACTA negotiations.
The second resolution, supported by Conservative Members of the European Parliament, includes:
1. Is aware that the ACTA negotiations, owing to their particular nature, require a high level of confidentiality in order not to undermine the legitimate interests of the stakeholders and the participating States; considers, however, that a more transparent process should be ensured in order to provide appropriate information, as repeatedly requested by the European Parliament;
2. Welcomes the fact that the Commission has been briefing members of Parliament's Committee on International Trade (INTA), despite the confidential character of the multilateral negotiations, using the format of regular exchanges of views with the Director-General of DG Trade at open meetings of INTA coordinators;
3. Calls on the Commission to grant Parliament access to documentation of ACTA negotiating texts in order to permit it to be up to date with the state of play of the negotiations; acknowledges that certain information might require confidentiality and should be provided in an appropriate form;
4. Calls on the Commission also to actively engage with the other ACTA negotiating partners prior to the next negotiating round in New Zealand in April 2010, in order formally to place the issue of transparency on the agenda for that meeting, and to report to Parliament's specialised committee on the outcome of that round immediately after its conclusion;
5. Calls on the Commission to continue the negotiations on ACTA in order to improve the effectiveness of the IPR enforcement system against counterfeiting;
6. Calls on the Commission to conduct an assessment of the impact of ACTA's implementation on fundamental rights and data protection, on the ongoing EU efforts to harmonise IPR enforcement measures and on E-Commerce, with a view to an EU agreement on a consolidated ACTA text, and to consult with Parliament about the results of this assessment in due course;
7. Welcomes the Commission's statements to the effect that any ACTA agreement will be limited to the enforcement of existing IPRs, without prejudice to the development of substantive IP law in the European Union;
8. Urges the Commission to ensure that the enforcement of ACTA provisions – especially those on copyright enforcement procedures in the digital environment – are fully in line with the acquis communautaire and that no personal searches are undertaken at EU borders;
9. Considers that, in order to comply with fundamental rights, such as freedom of expression and the right to privacy, with full respect for subsidiarity, the proposed agreement should not impose the so-called 'three strikes' procedure;
10. Emphasises that privacy and data protection are core values of the European Union, as recognised in Article 8 of the European Convention on Human Rights (ECHR) and Articles 7 and 8 of the EU Charter of Fundamental Rights, which must be respected in all the policies and rules adopted by the EU pursuant to Article 16 of the TFEU;
11. Instructs its President to forward this resolution to the Council, the Commission and the governments and parliaments of the states party to the ACTA negotiations.
Over the next couple of days there will efforts to merge the two documents. If adopted, the resulting document will be the strongest statement from an elected body on the need for dramatic change to the current ACTA process.
On top of these resolutions, there is also a written declaration supported by four MEPs (Françoise Castex, Zuzana Roithová, Alexander Alvaro, Stavros Lambrinidis). La Quadrature du Net has information on how to support the declaration.
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.
Tom Clark then asks - "so are we joining WIPO?" and Clement says that Canada will be consistent with WIPO. Note that Clement was also asked specifically about a digital economy strategy. After noting that Canada is "fair to middling" in international ranks on the digital economy, he pointed to three key areas. First, the need for a legislative agenda that includes passing the Electronic Commerce Protection Act (the anti-spam bill), introducing copyright reform, and updating Canadian privacy laws. Second, investing in broadband and networks. Third, helping spur business adoption of technology.
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."
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.
On the legislative front, Clement should reintroduce the Electronic Commerce Protection Act, the anti-spam bill that passed through the House of Commons and was to have been the subject of Senate hearings earlier this year. Having received all-party support and extensive study, the legislation should be placed on a rocket docket with a commitment to passing the bill before the summer recess.
Two other long-awaited bills should be part of the short-term digital strategy. With the national copyright consultation complete, a digital copyright bill consistent with Clement’s commitment to a forward-looking, technology neutral approach should be introduced within the next 100 days. So, too, should a privacy reform bill, which Clement identified as a priority at the start of 2010.
Beyond new legislation, government can use the next 100 days to lead by example. A new data.gc.ca website with open government datasets like those found in the U.S. and U.K. should be easy to achieve. The government also could follow the Australian approach to solve the crown copyright problem that restricts use of government documents by adopting open licences that grant permission to use documents without formal approval (or the need for a new law).
The government can use the next 100 days to step up its digital enforcement agenda. This includes ensuring Internet providers are compliant with net neutrality requirements and that telemarketers abide by do-not-call legislation.
Finally, longer-term digital agenda issues must be put on the policy front burner. These include discussions on spectrum allocation, digital television transition, removal of Canadian control requirements in the telecom sector, and new media issues.
None of these initiatives will mark an immediate resurgence in Canada’s digital ranking. But after years of missteps, perhaps some baby steps now would put the nation’s digital agenda back on track.
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: Read More ...
on the preamble: "the words 'in order to facilitate the continued development of an industry engaging in providing information services online' provide an interpretative gloss on Article 2.17.3 which appears to go beyond the general aim of ACTA to provide a framework for the enforcement of intellectual property rights
on safe harbours: "we understand [Paragraph (a)(iii) covers information location tools such as search engines. It is not clear how the provision or use of information location tools breaches copyright, or why third party liability should arise for the provision of such tools. We would welcome further explanation on the need to provide such a safe harbour."
on establishing a policy that could lead to three strikes: "New Zealand does not support the inclusion of this condition. New Zealand can, however, support the inclusion of a provision aimed at preventing a party to ACTA conditioning safe harbours on an online service provider "monitoring its services or affirmatively seeking facts indicating that infringing activity is occurring."
on anti-circumvention rules: "The paragraphs refer to 'adequate legal protection' as well as remedies, which is inconsistent [with] the objective of ACTA to establish standards for the enforcement of intellectual property rights and the ACTA discussion paper. In particular, we note that the discussion paper only refers to parties providing 'remedies against circumvention of technological protection measures used by copyright owners and the trafficking of circumvention devices." New Zealand does not support protection being mandated against circumvention of TPMs where the underlyig work is not protected by copyright. In particular, we do not support protection against circumvention of access control TPMs because access control is not an exclusive right given to copyright owners."
on rights management information: New Zealand does not support the protection of RMIs extending to information that identifies a performance, the performer of the performance, the owner of any right in the performance, or the producer of a phonogram."
Why is the Canadian delegation content to say virtually nothing and leave it to New Zealand to take the strongest position on these ACTA issues? Why does Canada not join with New Zealand to present a stronger front against the extension of ACTA far beyond copyright enforcement?
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.
Canada has expressed concern with the title of the chapter ("Special Measures Related to Technological Enforcement Means and the Internet") and the substance of the chapter
On the ISP safe harbour chapter, the leak identifies three proposals (consistent with an earlier NZ comment). In addition to the U.S. proposal that was leaked earlier, there is a Japanese proposal and one from the EU. Moreover, many countries have raised specific issues about the U.S. language. For example, New Zealand notes that the safe harbour appears to cover Information Location Tool providers (ie. search engines), but that it wonders why there is a concern of liability to begin with.
Japan's alternative proposal calls for ISP liability based on knowledge of infringement. It states that there may be liability if it is technically possible to prevent the infringement and the provider "knows or there is reasonable ground to know" that infringement is occurring. There are additional provisions on the inclusion of a notice system and industry cooperation.
With respect to the requirement of an ISP policy that could include three strikes as a pre-requisite for qualifying for the safe harbour, New Zealand is opposed to the condition altogether. Meanwhile, Japan notes that its law does not contain a policy requirement and it would have to consider whether it can agree to that requirement.
On the implementation of notice-and-takedown, Canada has noted that the relationship between third party liability and ISP limitation of liability is unclear.
On the anti-circumvention rules, which involves a U.S. attempt to implement a global DMCA, the EU would like to exclude access controls from the ambit of the provision. They are not alone - New Zealand opposes their inclusion and Japan also takes the position that access controls are not required by the WIPO Internet treaties and is apparently concerned about the implications for its domestic law. There is no reference to a Canadian position, despite the fact that this goes beyond current Canadian law.
Civil Enforcement Chapter
the U.S., Japan, and the European Union want the civil enforcement powers to extend to any intellectual property right. Canada, Singapore, and New Zealand seek a more limited treaty that covers only copyright and trademarks.
the EU is seeking injunctive relief powers against intermediaries whose services are used by a third party to infringe an IP right. The EU is alone in focusing on intermediary injunctions.
on statutory damages, the EU seeks to limit damages to actual damages, while the U.S. is proposing statutory damages. There is also dispute on the scope of the IP rights (all vs. just copyright and trademark). Canada and NZ also want to limit or exclude damages in certain special cass.
on the disclosure of information related to investigations, the U.S. is pushing for very broad language, while the E.U. wants to limit with specific kinds of information (and Canada has proposed further limiting language).
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!
