Wednesday, 4 July 2012

Activism Is Changing The IPR Landscape

 ACTA is on its last legs. EU Commissioner Karel de Gucht got a slap from Lidia Geringer De Oedenberg MEP in the plenary meeting today as she reminded him that the European Parliament appoints the commissioner and can dismiss him. The voices of the activists have been noted. It remains to be seen whether they will be heeded. Meanwhile, a revolution is taking place in the way IPR is being dealt with.


I took time out from my usual activities to write a commentary on the ACTA debate in the EP today. See it here. It was interesting to see how the MEPs were divided; on the left were the digital and civil rights people who wanted to make sure that artists and innovators are compensated while people's rights are respected, xenophobia divided the right into pro-ACTA to boost business and anti-ACTA to keep interfering foreigners out of their legislative process. Ultimately, it seems that the xenophobes will help the left to defeat it. Attendance was patchy, though, so the vote could still go either way.

Delay tactics


ACTA is part of a global IPR ratcheting scheme by the rightsholders, who are unable to countenance other ways of earning money in the digital age except by squeezing the rest of us dry. It's incredibly destructive and it's got to the point where the rest of us can't take it any more and are starting to fight back. But the pro-ACTA forces are fighting, too. Commissioner de Gucht has already made it very clear that we are all very naughty for not caving in to the lobbyists and that we should do more to protect IPR. He has also made it clear that whatever Parliament does, he will try to sneak ACTA back in at a later date if they vote to reject it tomorrow.

The EPP, a right-wing parliamentary group, has made it clear that they intend to vote to delay ACTA until it has been referred to the European Court of Justice to see if it's compatible with EU treaty law. However, as I have already pointed out, de Gucht would simply submit the treaty to Parliament at a later date regardless of the ECJ's decision. With 270 members, they've got a real chance of making that happen if enough of the others abstain or don't show up tomorrow. We need a decisive once-and-for-all vote. Then we need to get rid of de Gucht and replace him with someone else. Neelie Kroes seems more reasonable.

What's at stake?


According to Australian tech blog IT News,


A delay to European Parliament's decision on ACTA would distance the vote from sensitive deliberations in the US over the equally controversial Trans-Pacific Partnership Agreement (TPP).

It is understood that co-signatories to ACTA — Australia, New Zealand and Singapore — are pressing to align the TPP’s contentious intellectual property chapter in accord with ACTA, as a fall-back position from the US’ more aggressive extension of rights internationally.

The Australia/NZ/Singapore compromise was first raised during May talks held in Dallas.

Such a compromise would also improve the chances of TPP's otherwise dubious intellectual property proposals surviving at least another round of negotiations.

But an outright rejection of ACTA by the European Union this week could make the position on TPP tenuous.


It is absolutely CRUCIAL to get rid of ACTA tomorrow; doing so could lead to the collapse of the Trans Pacific Partnership agreement and that would be a massive global boost for human rights. Other people are just waking up to it and killing ACTA would be a shot in the arm for them. I've already had correspondence with Deputy Chief Negotiator Elizabeth Ward on TPP. The first time around she insisted it was transparent. I replied, "Oh, yeah? Please let me see the text." This time she was more circumspect, aware that I'm not a common yob:


As is normal practice in trade negotiations, the TPP parties have agreed to keep negotiating documents (including draft text) confidential. Releasing text therefore would require the agreement of all Parties. I confirm, however, that text proposals have no status unless and until they are agreed by all Parties. As negotiating positions in texts can include ambit claims and evolve as negotiations progress, the current TPP text proposals would not necessarily give any indication of the likely outcome.

The Department of Foreign Affairs and Trade will continue to take all available opportunities to engage with stakeholders and to meet with interested parties, and is always open to receiving written submissions. - Elizabeth Ward, Deputy Chief Negotiator, TPP, letter published on G+.


You can read my rebuttal here. Basically I pointed out the need for transparency and the problems of opacity including a lack of public faith in their representatives. Read the quote from the IT blog again. TPP is doomed to collapse or at least be substantially neutered if we can get rid of ACTA tomorrow. It would be most remiss of me to fail to report the presence of senior US Congress staff at a crucial EPP meeting yesterday, as reported to Twitter at 10.16am.


US-EU relations crucial for group - tweet.


This is why they're so pro-ACTA: it's what the US wants, and if they get it through, TPP is a shoe-in. There's a lot at stake; if that goes through as well, kiss your freedom goodbye. The good news is, MEPs are getting 12 emails a second. We have every chance of winning this, but we need to keep the pressure on.

Our Governments are listening


Techdirt had some interesting news today. It seems that the USTR is heeding the voices of protest and has decided to cave in to us on providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. They've missed parody, but this is very encouraging. Add to that the fact that the US government is actively seeking to engage with the public on IPR, and it seems that the tide is beginning to turn in our favour.

 Even the UK's OFCOM, frustrated by the difficulty of implementing the hated Digital Economy Act, is seeking a way out via public consultation.

Meanwhile, in the courts


Apple has managed to ban sales of Samsung's Galaxy Tab and Nexus in the US as part of an ongoing patent dispute. The internet is not pleased and #BoycottApple has been trending on Twitter and on Google Plus as netizens voice their displeasure.

Meanwhile, the European Court of Justice has upheld the first sale doctrine, which basically declares that if you bought it, you own it, and no one can exert ownership rights over it after that.

It also looks like the attempts to extradite Richard O'Dwyer will be thwarted, the Communications Data bill will be quashed as unworkable, and Kim Dotcom's case will be dropped. The news that internet train wreck Charles Carreon has just dismissed his case against Inman and Indiegogo is gravy.

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