Commission refers ACTA to ECJ

Scofflaw

I see the European Commission have referred ACTA to the ECJ:

The European Union's highest court has been asked to rule on the legality of a controversial anti-piracy agreement.

The Anti-Counterfeiting Trade Agreement (Acta) has been criticised by rights campaigners who argue it could stifle free expression on the internet.

EU trade head Karel De Gucht said the court will be asked to clarify whether the treaty complied with "the EU's fundamental rights and freedoms".

The agreement has so far been signed by 22 EU member states.

The European Commission said it "decided today to ask the European Court of Justice for a legal opinion to clarify that the Acta agreement and its implementation must be fully compatible with freedom of expression and freedom of the internet".

Several key countries, including Germany and Denmark, have backed away from the treaty amid protests in several European cities.

Acta is set to be debated by the European Parliament in June.

While countries can individually ratify the terms of the agreement, EU backing is considered vital if the proposal's aim of implementing consistent standards for copyright enforcement measures is met.

http://www.bbc.co.uk/news/technology-17125469

The Commission statement on referring ACTA, which makes it clear that the Commission is collectively pro:

Statement by Commissioner Karel De Gucht on ACTA (Anti-Counterfeiting Trade Agreement)

I am glad to say that this morning my fellow Commissioners have discussed and agreed in general with my proposal to refer the ACTA agreement to the European Court of Justice.

We are planning to ask Europe’s highest court to assess whether ACTA is incompatible - in any way - with the EU's fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property. 

As you are no doubt aware, within the EU institutional process, the European Commission has already passed ACTA to national governments for ratification. The Council has adopted ACTA unanimously in December and authorised Member States to sign it. The Commission has also passed on ACTA to the European Parliament for debate and a future vote. 

That said, I believe the European Commission has a responsibility to provide our parliamentary representatives and the public at large with the most detailed and accurate information available. So, a referral will allow for Europe’s top court to independently clarify the legality of this agreement.

In recent weeks, the ratification process of ACTA has triggered a Europe-wide debate on ACTA, the freedom of the internet and the importance of protecting Europe’s Intellectual Property for our economies.

But let me be very clear: I share people’s concern for these fundamental freedoms. I welcome that people have voiced their concerns so actively – especially over the freedom of the internet. And I also understand that there is uncertainty on what ACTA will really mean for these key issues at the end of the day.

So I believe that putting ACTA before the European Court of Justice is a needed step. This debate must be based upon facts and not upon the misinformation or rumour that has dominated social media sites and blogs in recent weeks.

As I have explained before the European Parliament on several occasions, ACTA is an agreement that aims to raise global standards of enforcement of intellectual property rights. These very standards are already enshrined in European law. What counts for us is getting other countries to adopt them so that European companies can defend themselves against blatant rip-offs of their products and works when they do business around the world. 

This means that ACTA will not change anything in the European Union, but will matter for the European Union.

Intellectual property is Europe’s main raw material, but the problem is that we currently struggle to protect it outside the European Union. This hurts our companies, destroys jobs and harms our economies. This is where ACTA will change something for all of us - as it will help protect jobs that are currently lost because counterfeited and pirated goods worth 200 billion Euros are floating around on the world markets.


So let me be clear: ACTA will change nothing about how we use the internet and social websites today – since it does not introduce any new rules. ACTA only helps to enforce what is already law today.

ACTA will not censor websites or shut them down; ACTA will not hinder freedom of the internet or freedom of speech.

Let's cut through this fog of uncertainty and put ACTA in the spotlight of our highest independent judicial authority: the European Court of Justice.

This clarity should help support a calm, reasoned, open and democratic discussion on ACTA - whether at the national or at the European level. We will also be in contact with the other European institutions to explain this step and why it would make sense that they make the same move.

On the other hand, we have Commission VP Neelie Kroes on SOPA via Twitter:

Glad tide is turning on #SOPA: don't need bad legislation when should be safeguarding benefits of open net.

and Commissioner Viviane Reding at a conference:

"The protection of creators must never be used as pretext to intervene in the freedom of the Internet," Reding told an international Internet conference in the southern German city of Munich, noting the "heated debate" surrounding the issue.

So possibly here the decision to refer ACTA to the ECJ is being taken at least partly as a result of divisions in the Commission.

cordially,
Scofflaw

Spacedog

Minister of State Sean Sherlock, signed the agreement on behalf of Ireland in Tokyo, Japan on Thursday 26th January. (5 days before the SI debate)

Edit: The agreement was actually signed by the Irish Ambassador to Japan, Mr. John Neary, not Minister Sherlock.

Here is my own interpretation of the the text of the ACTA treaty...

link to ACTA text

Opening Paragraph - "The Parties to this Agreement"
This chapter establishes the tone of the treaty and from the beginning obfuscates the differences between actual property/trademarks (and their centuries of legal baggage) and the relatively new concept of intellectual property and copyright infringement. it also emphases focus on the digital world and copyright. The treaty itself offers few guidelines in respect to protecting citizens from specifically dangerous counterfeit products, making no differentiations based on physical safety, low quality counterfeits.

Also introduced here is the concept of balance of the the rights and interests of the relevant right holders, service providers, and users. This is a common talking point of the media lobby, and is used often to justify increasing the rights of IP holders at the expense of the rights of internet operators and citizens fundamental rights to free speech, privacy. The language is crafted to imply a sense of fairness and balance, however, civil liberties and human rights are enshrined at the highest levels in law. Weather the ideology of Intellectual Property should hold equal standing should be an issue of vigorous debate and not an issue to be taken at face value.

Article 5 part (l)
Right holder is defined in the treaty as including "includes a federation or an association having the legal standing to assert rights in intellectual property". it's worth mention that this agreement is designed primarily to hold these organisations interests ahead of individuals creative rights holders.


Article 8: INJUNCTIONS
"Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority to issue an order against a party to desist from an infringement, and inter alia, an order to that party or, where appropriate, to a third party over whom the relevant judicial authority exercises jurisdiction, to prevent goods that involve the infringement of an intellectual property right from entering into the channels of commerce."

This definition is vague and very much open to interpretation. What goods are we talking about here? physical goods like VCRs, Cassette recorders, DVD burners, or even computers? Software goods that allow the copying of home videos and music production, Real player, Adobe Premier, etc? or even goods in the form of packages by internet service providers, would providing access to a means of a communications channel to the internet, through which copyright infringement might occur count as providing goods that involve copyright infringement?

This kind of uncertainty is often passed down while making local law, and opens individuals and small business to the threat of defending themselves from injunctions, involving expensive legal fees.

Article 9: DAMAGES
This is a tricky section, paragraphs 1 and 2 are presented as mild suggestions of damages, but paragraph 3 states that these suggestions must be implemented as an alternative at the request of the rights holder (defined earlier as media companies). This to me requires participants of ACTA to sign into effective law, the myth that every single illegal download of a copyrighted work represents a lost sale and that the right holder should be compensated as such. In reality this is not the case, and there are several conflicting studies carried out by interest groups and independent researchers around this topic.
This topic is important as you will see later, as an individual downloader of a single song can be classified legally as a mass distributor of the same song and charged for tens of thousands of lost sales as a result. This is what happened in the US thousands of times over since the introduction of the DMCA act, on which ACTA is based.

Article 10: OTHER REMEDIES
This article has huge impact on on physical copyright infringement liability because of it's vagueness, there is no reference to the suitability of the product or regard of if it's fitness for purpose or completely dangerous. I can offer several examples of 'good copies' of physical goods and initiatives that would be declared illegal under this article.

1. Generic drugs, 100% perfect copies of expensive medications that can be cheaply distributed to the poor or made en mass in the event of an epidemic emergency.
http://en.wikipedia.org/wiki/Generic_drug
2. Genetically Modified Seeds, natural reproduction of GM plants could be classified infringing the Intellectual Property of the corporation who produced it.
http://en.wikipedia.org/wiki/Monsanto#Terminator_seed_controversy
3. 3D Printing, a new emerging technology that allows people to print downloadable objects, the same as they would download and print a document today.
http://www.youtube.com/watch?v=fScRYhq-5M0
http://www.thingiverse.com/featured

If ACTA is to really prevent dangerous counterfeits, then this notion should be clearly defined here in article 10. It is not.

Article 11: INFORMATION RELATED TO INFRINGEMENT
This Article suggests that a legal framework be set up to allow rights holders to request personal information on suspected copyright infringers through the courts, and that framework be defined within the frame of existing personal data protection law. in the case of existing data protection law I understand that individuals personal details records are secure, but that there are outstanding issues with ISP data logging and data retention that are as yet unresolved. I want to point out that because of the nature of how file transfers occur on today's internet, that from a legal perspective, anyone downloading illegal content using the popular bit-torrent protocol would also be liable for distribution and copyright infringement. This article although vaguely worded, opens a quagmire of messy law that flies in the face of the right to privacy for a huge proportion of EU citizens.


Article 23: CRIMINAL OFFENCES
Paragraph 1 declares the one-word description of cases of "copyright" as being criminal offences with corresponding criminal judicial procedures. Page notes go on to define commercial trademark infringement being defined by scale rather than commercial profit made by the counterfeiters.
Paragraph 3 allows for the criminalisation of operating a video camera in the vicinity of a performance of a copyrighted work, E.g. recording a childrans party in a cinema.
Paragraph 4 allows for the criminalisation of aiding and abetting copyright infringement!

Article 24: PENALTIES
Defines the penalty for copyright infringement or the aiding and abetting copyright infringement to be imprisonment and/or large, disproportionate fines based in the criteria of the '1 Download = 1 Lost Sale' myth detailed above.

Article 25: SEIZURE, FORFEITURE, AND DESTRUCTION
Paragraph 5 allows for property of equal value to perceived 'lost profits' be ceased from a copyright infringer. under this section, someone sharing a handful of movies online with could potentially have their home and possessions ceased.


Article 27: ENFORCEMENT IN THE DIGITAL ENVIRONMENT
Paragraph 5 implements law that protects DRM (Digital Rights Management) and copy protections systems designed to protect media from being copied. This is an enormous issue in the tech world. summarised here:

http://en.wikipedia.org/wiki/Digital_rights_management

In short DRM is the worst thing for consumers who pay for media and products, it is the technology that prevents you from playing songs you paid for on itunes on non-apple devices, it is the reason you can't fast forward through the ads and trailers on DVDs, it is the reason you can't play a video game you have paid for because your internet connection is down.

For an example of someone who circumvented DRM copy protection, look at the case of Jon Lech Johansen
http://en.wikipedia.org/wiki/DVD_Jon

...a Norwegian teenager who wrote a software DVD player so that he could watch his own films on his linux computer
this bright young man was dragged through the courts for many years under existing laws, under ACTA, he would be in prison.

Article 30: TRANSPARENCY
Missing transparency and accountability for the ACTA committee and sub-committees set up and detailed later in Article 36

Article 31: PUBLIC AWARENESS
Outlines a taxpayer funded propaganda campaign to promote the myths and ideology of Intellectual Property.

Article 36: THE ACTA COMMITTEE
Paragraph 3 (a) and (b) allows committee to invite undefined groups including media industry representatives, without regard for balance, or for stakeholders in other industries, or civil rights group consultation.
Paragraph 3 (d) gives the committee directive to recommend 'best practise' methods of monitoring citizens for copyright infringement activity.
Paragraph 3 (e) gives committee an open ended directive to do whatever it wants

timbyr

Article 27: ENFORCEMENT IN THE DIGITAL ENVIRONMENT

I'd be concerned about the wording around this, and the supposition that this is enacted in law.

It certainly seems excessively restrictive, my assumption is that reverse engineering for personal use on owned devices or media is somewhat legal, as it was with that Jon Lech case.

themadhair

timbyr wrote: »

It certainly seems excessively restrictive, my assumption is that reverse engineering for personal use on owned devices or media is somewhat legal, as it was with that Jon Lech case.

I agree. I think this language from the section is particularly problematic:

“5. Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, performers or producers of phonograms in connection with the exercise of their rights in, and that restrict acts in respect of, their works, performances, and phonograms, which are not authorized by the authors, the performers or the producers of phonograms concerned or permitted by law.

6. In order to provide the adequate legal protection and effective legal remedies referred to in paragraph 5, each Party shall provide protection at least against:

(a) to the extent provided by its law:

(i) the unauthorized circumvention of an effective technological
measure carried out knowingly or with reasonable grounds to
know; and

(ii) the offering to the public by marketing of a device or product,
including computer programs, or a service, as a means of
circumventing an effective technological measure; and

(b) the manufacture, importation, or distribution of a device or product,
including computer programs, or provision of a service that:

(i) is primarily designed or produced for the purpose of
circumventing an effective technological measure; or

(ii) has only a limited commercially significant purpose other than
circumventing an effective technological measure.”

Also:
“For the purposes of this Article, technological measures means any technology, device, or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works, performances, or phonograms, which are not authorized by authors, performers or producers of phonograms, as provided for by a Party’s law. Without prejudice to the scope of copyright or related rights contained in a Party’s law, technological measures shall be deemed effective where the use of protected works, performances, or phonograms is controlled by authors, performers or producers of phonograms through the application of a relevant access control or protection process, such as encryption or scrambling, or a copy control mechanism, which achieves the objective of protection.”

We all know about the Sony V Geohotz case, and that was one in which Sony’s case was based almost exclusively on the anti-circumvention legislation of the DMCA which the above ACTA language is a virtual carbon-copy of. The long list of abuses this legislation has caused is extensive including but no means limited to: The DeCSS debacle (a f**king joke decision imo, and worth noting that Jon Lech would have been toast if prosecuted under DMCA), the ban of tools needed for fair use (eg: DVD Decrypter), the Other World Computing case, the long list of security researchers who were harassed through this DMCA shoite, the Sklyarov bull****, etc.

That the DMCA anti-circumvention measures have been used to legally prevent security researchers from investigating computer security vulnerabilities, and also from those researchers being able to publish their work which is clearly in the public interest, is scary. That ACTA has copied similar language in wholesale junks is extremely troubling given that the concerns are not hypothetical, but based upon a litany of abuses and dodgy court decisions.

What is even more troubling about this is how, with the internet becoming ever more integrated with our daily lives, such legislation shifts the balance of power towards large corporations at the expense of user rights. The ongoing Facebook v Power Ventures case is a good example of this. Power Ventures offered a service whereby users of Failbook could export their data to other social networking sites. They would enter their usernames and passwords into the Power Venture software and it would automatically extract their Failbook data. Failbook, as part of its legal claim, cite the DMCA and argue that because such process involves making a temporary computer buffer copy of the Failbook pages (even if such are immediately discarded after the user’s data has been extracted) the anti-circumvention measures of the DMCA apply. This is a joke but, sadly, what seems to happen with badly crafted legislation like this. As the internet becomes a bigger part of our daily lives other websites and companies may, though using similar tricks like Failbook, may be able to prevent ordinary users from using their own data how they see fit.

Over the last week or so I have been wondering if TOR is illegal under such legislation. TOR is explicitly advertised for two purposes – providing anonymity and circumvention of firewall blocks. The latter would clearly quality as an ‘effective technological measure’ per the ACTA text, and I would argue that the vagueness of the language means it is not unreasonable to suppose that the anonymity (since using IPs to track down and punish offenders would be an ‘effective technological measure’) would also fall foul.

TL;DR:
The anti-circumvention legislation of ACTA is copied from the DMCA. It has been a complete and utter disaster for users and their ability to make free choices about how they use products they have legitimately bought as well as how they use their own personal data. It has been a complete disaster for fair use, with many of the tools needed for fair use being banned. Given that the internet and digital media is becoming more and more prominent in our lives, why would anyone think it is a good idea to import a piece of legislation that has proven itself to be a total clusterf**k and a detriment to rights of consumers??

Oh right, that would be the media companies that lobbied for this **** in the first place.

View

Out of curiosity, where do posters see the proposed Article 27 (i.e. ENFORCEMENT IN THE DIGITAL ENVIRONMENT) differing radically from the current legal situation under EU/Irish - as opposed to US - law in this area?

themadhair

View wrote: »

Out of curiosity, where do posters see the proposed Article 27 (i.e. ENFORCEMENT IN THE DIGITAL ENVIRONMENT) differing radically from the current legal situation under EU/Irish - as opposed to US - law in this area?

The actions I describe in my last post that are verbotten under the DMCA (and thus, due to borrowing the same language, will be barred under ACTA) are currently legal in the EU under concepts like fair use and fair dealing.

Jon Lech was tried in Norway and acquitted – this would not have been the case under ACTA.

Another troubling aspect to Article 27 is this:
”A Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally
sufficient claim of trademark or copyright or related rights infringement, and where such information is being sought for the purpose of protecting or enforcing those rights.”

Compare this with the current standard as set forth under the TRIPS agreement:
”Members may provide that the judicial authorities shall have the authority, unless this would be out of proportion to the seriousness of the infringement, to order the infringer to inform the right holder of the identity of third persons involved in the production and distribution of the infringing goods or services and of their channels of distribution. ”

Note the subtle change. No longer is an infringement a requirement for disclosure, an allegation of infringement may be sufficient. That is a troubling shift in language and it challenges the whole notion of innocent until proven guilty. What is also troubling is that, when taken in addition to the anti-circumvention measures, the grounds for which your private information can be disclosed is greatly expanded.

View

themadhair wrote: »

The actions I describe in my last post that are verbotten under the DMCA (and thus, due to borrowing the same language, will be barred under ACTA) are currently legal in the EU under concepts like fair use and fair dealing.

The language used in your previous post would appear to me to differ only very marginally in intent, whatever about exact phrasing, from the language used in the EU copyright directive.

PROTECTION OF TECHNOLOGICAL MEASURES AND RIGHTS-MANAGEMENT INFORMATION

Article 6

Obligations as to technological measures

1. Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.

2. Member States shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which:

(a) are promoted, advertised or marketed for the purpose of circumvention of, or

(b) have only a limited commercially significant purpose or use other than to circumvent, or

(c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of,

any effective technological measures.

3. For the purposes of this Directive, the expression "technological measures" means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC. Technological measures shall be deemed "effective" where the use of a protected work or other subject-matter is controlled by the rightholders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the protection objective.

...

The above situtation may account for the claim from a government spokesman that ACTA would not require any addition legislation (presumably beyond the proposed "small" SI to bring Irish law into line with the Copyright directive).

themadhair

For some reason my subscription emails aren’t getting through.

@ View

Why did you leave out the section that immediately follows your quotation? The one that lists all the exemptions that take account of fair use and the like? Strikes me as a bit of dishonest quote-mining tbh when you leave it out.