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Friday March 12, 2010 |
This has been a remarkable two weeks for those tracking the Anti-Counterfeiting Trade Agreement, as the proposed treaty has begun to attract attention at the highest political levels. The European Union has undergone the greatest change. First, the identification of the transparency holdouts led to a unanimous EU position favouring release of the text. This week, EC Commissioner for Trade Karel De Gucht stated: "I will see to it that at the next negotiating round, in April, the Commission will vigorously push its negotiating partners to agree to release the text." This leaves the U.S., South Korea, and Singapore as the remaining barriers to full transparency. Second, this week's European Parliament resolution places the European Commission on the defensive with respect to ACTA. The negotiations will continue, but Europe clearly faces internal challenges in the ACTA process.
The U.S. response to the European developments came yesterday, as President Obama reiterated his support for finishing ACTA. In comments on IP enforcement, Obama discussed the need to "aggressively protect" IP, pointing specifically to ACTA. The reference to ACTA was clearly meant to send a strong signal that the U.S. intends to continue its push for a treaty. Indeed, the U.S. has not changed its position on anything with respect to ACTA - it is one of the lone holdouts on the issue of transparency and its negotiating position on the text itself has not moved much through almost two years of negotiations. Consider the Civil Enforcement chapter, which was first proposed by the U.S. in July 2008 at the second round of ACTA talks in Washington. The recent leak of the latest version of the chapter shows that practically nothing has changed:
Read More ...Article 2.1 Availability of Civil Procedures 1. No Change 2. No Change Article 2.2 Damages 1. No Change 2. No Change 3. Wording Change: Original
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| | Each Party shall provide that the right holders shall have the right to choose the remedy in paragraph 2 as an alternative to the remedy in paragraph 1. | Each Party shall provide that the right holder shall have the right to choose the system in paragraph 2 as an alternative to the damages in paragraph 1. | 4. Change – transposed words Original
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| Each Party shall also provide that its judicial authorities, [Option US: at least in proceedings concerning copyright or related rights infringement or willful trademark counterfeiting] shall have the authority to order, [Option US: except in exceptional circumstances][Option J: in appropriate cases], that the prevailing party be awarded payment by the losing party of reasonable attorney’s fees.
| Each Party [US/J:shall] also provide that its [US/J: judicial] authorities, [US/Can/Mor/MX/NZ: except in exceptional circumstances], [US/Can/Aus/Mor: {US/Aus/Mor: at least }in proceedings concerning copyright or related rights infringement or willful trademark counterfeiting,] shall have the authority to order, [J/Can/Aus/NZ: in appropriate cases], that the prevailing party be awarded payment by the losing party of [US/J: reasonable] attorney's fees | Article 2.3 Other Remedies 1. No Change 2. No Change 3. No Change Article 2.4 Information related to Infringement Change – Addition of words Original
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| | Each Party shall provide that in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to order the infringer to provide, for the purpose of collecting evidence… | Each Party shall provide that in civil judicial proceedings concerning the enforcement of [US/J: intellectual property rights], its judicial authorities shall have the authority upon a justified request of the right holder, to order the infringer to provide, [US/J; for the purpose of collecting evidence]… | Article 2.5 Provisional Measures 1. No Change 2. No Change 3. No Change The U.S. position for the moment appears closer to "take it or leave it" with the bet that many ACTA partners will see little political alternative but to take it. |
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Wednesday March 10, 2010 |
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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. acta, anti-counterfeiting trade agreement, australia, copyright, Counterfeit, Counterfeiting Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday March 10, 2010 |
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Wednesday March 10, 2010 |
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. acta, anti-counterfeiting trade agreement, copyright, Counterfeit, Counterfeiting, ep, european parliament Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday March 10, 2010 |
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Wednesday March 10, 2010 |
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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. acta, anti-counterfeiting trade agreement, internetnz, publicacta Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday March 10, 2010 |
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Tuesday March 09, 2010 |
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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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.
acta, anti-counterfeiting trade agreement, copyright, Counterfeit, Counterfeiting, ep, european parliament Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday March 09, 2010 |
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Monday March 08, 2010 |
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:
Read More ... 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.
acta, anti-counterfeiting trade agreement, copyright, Counterfeit, Counterfeiting, eu Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday March 08, 2010 |
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Monday March 08, 2010 |
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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. acta, anti-counterfeiting trade agreement, copyright, Counterfeit, Counterfeiting, poynder Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday March 08, 2010 |
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Monday March 08, 2010 |
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Blayne Haggart offers some insight into the fight for ACTA transparency in Mexico. acta, anti-counterfeiting trade agreement, copyright, haggart, mexico Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday March 08, 2010 |
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Wednesday March 03, 2010 |
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German Justice Minister Leutheusser-Schnarrenberger tells Spiegel Online that Germany would like to see the full draft ACTA texts released now and that the country will not accept inclusion of a three strikes system nor adopt such a system domestically. acta, anti-counterfeiting trade agreement, copyright, Counterfeit, Counterfeiting, germany Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday March 03, 2010 |
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Wednesday March 03, 2010 |
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The USTR has posted responses to a series of ACTA questions posed by U.S. Senator Ron Wyden. acta, anti-counterfeiting trade agreement, copyright, Counterfeit, Counterfeiting, ustr, wyden Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday March 03, 2010 |
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