internet policies

Update II: Recordings now on youtube!

Live broadcast finished less than 3 minutes after it started.

Update:There was no live broadcast, no real exchange of views and no real answers to questions. I'd say the meeting was a total failure.

There will be "exchange of views with the Commission" today. I hope there will be time for questions. Here are some prepared.

- Would the Commission agree that Member States' criminal sanctions and penalties relating to "inciting, aiding and abetting" are not harmonised in the area of intellectual property law? Then, if the EU's ACTA delegation is proposing texts essentially identical to what the Parliament voted on in its first reading on IPRED2, would the Commission agree that such activity is legislative in character?

- The legal basis for IPRED2, article 83 TFEU, says: "directives [not trade agreements] may establish minimum rules with regard to the definition of criminal offences and sanctions". What measures are the Commission taking to ensure a proper democratic procedure for IPRED2 will not be circumvented by ACTA?

- If the Commission made a formal agreement with the ACTA negotiating partners with regard to confidentiality, can the Commission confirm that it was authorised to do so by its negotiating mandate? If the Commission made such a formal agreement, will the Commission publish the text of the agreement? If not, why not?

- Will the Commission consider suspending the negotiations until all parties agree to renegotiate the confidentiality agreement put forward by the US delegation (the McCoy Agreement)?

- The Commission is legally obliged to inform the EP at the same level as Council and take its positions in due account at all stages of the negotiations. The existence of document 6437/10 with the title "ACTA negotiations - EU counterproposal - possible flexibility", dated 15 February is indicated on the Council's website. Has the Parliament been consulted to give its view on this "EU counterproposal"? Has the Parliament been informed about which developments necessitate this call for "flexibility"? Can the Commission provide the specific legal basis that it is using in order to justify the apparent non-application of Article 218 of the Treaty with regard to these ACTA documents.

- Given that ACTA participants have a deadline of 12 March to comment on the US/Japan draft dated 18 Jan 2010, when and how will the Commission get and integrate the comments of the European Parliament on that draft within that deadline? When will the Commission provide the Council with the draft? Can the Commission provide the specific legal basis that it is using in order to justify the apparent non-application of Article 218 of the Treaty with regard to these ACTA documents.

- Will the Commission undertake to fully respect the European Parliament's clearly stated view, expressed in report INI/2008/2133 that ACTA should only concentrate "on IPR enforcement measures and not on substantive IPR issues such as the scope of protection, limitations and exceptions, secondary liability or liability of intermediaries"?

- The Commission has guaranteed that "ACTA should not contain measures restricting end-users’ access to the Internet" in the context of a concern that the Telecoms Package decision would not be upheld. Would the Commission also guarantee compliance with e-commerce directive and say ACTA should not contain measures restricting internet service providers' mere conduit status?

- Does the Commission intend to propose measures to minimize the risk that - particularly in third countries where citizens do not have the protections offered by the telecoms package, ECHR and data protection Directives - ISPs will feel obliged by any new third party liability created by ACTA to implement extra-judicial measures such as "three strikes" policies? On what basis does the Commission believe that a failure to do this would not be in breach of Article 21 of the TEU?

I have not had time to analyse EDPS opinion on ACTA yet, but it raises even more questions regarding both the procedure and the content. This statement is astonishing:

EDPS particularly regrets that he was not consulted by the European Commission on the content of such an agreement.

I think it's time to put this farse to a halt and stop calling a lawmaking process a trade negotiation.

Please have a look at EDRi's FAQ too.

The EU is about to export verbatim copies of IPRED1 articles to a group of countries called the CARIFORUM States (Belize, Jamaica, Haiti, Suriname etc). At the same time, Sweden's largest telecommunication services company TeliaSonera says* the Data Retention Directive overrides IPRED1 since it provides privacy protection for private persons visavis copyright holders. If TeliaSonera is right, the privacy protecting provisions in the Data Retention Directive would have to be included in the CARIFORUM agreement along with the privacy invasive articles of IPRED1, otherwise the Commission would have overstepped the Acquis Communautaire by exporting a law without its balancing counterparts. This would be particularly sensitive in the light of Reding's promises to make fundamental rights impact assessments under the Lisbon treaty. It would be reasonable to expect the Commission to put in place checks and balances to stop fundamental rights in third countries being undermined as a direct result of bilateral and/or plurilateral "trade agreements". Yes, I mean ACTA too.

If you were a copyright holder opposing TeliaSonera, and the CARIFORUM agreement was legally binding to all EU Member States (which I think it is not since it is still Awaiting final decision), you could argue that TeliaSonera's interpretation is invalid since no overriding of IPRED1 was agreed with the CARIFORUM States. And you cannot breach international agreements.

Regardless of who is right or wrong here, I'd say that when you are cherrypicking EU directive articles and insert them in binding international agreements you are safely within the Turco case definition of "legislative initiatives" and/or "legislative action".

"The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights.

"[...] such an overriding public interest is constituted by the fact that disclosure of documents containing the advice of an institution's legal service on legal questions arising when legislative initiatives are being debated increases the transparency and openness of the legislative process and strengthens the democratic right of European citizens to scrutinize the information which has formed the basis of a legislative act[...]"

Amelia has found a document which seems to be addressing this issue, but its not public...

*) For some reason Google translates Telia into Vodafone :-)

It is now clear that it is not only the EU-Korea deal which is as directive-like and law-like you can get. The same goes for the currently negotiated so called CETA agreement with Canada. It's a directive lookalike. Chunks of EU directive articles are simply copied. I guess that's the reality behind the recent statements from the Commission and Member States officials that ACTA will not go beyond EU law, or as they say here in Brussels, the Acquis Communautaire.

I'm trying to figure out exactly what and how much is copypasted from i.e. IPRED1 - one of the most controversial and far reaching IPR directives passed in the EU for a long time. Go to the Canada agreement articles and then look at the corresponding EU directive articles. When I'm done you should be able to klick on history and then choose the preselected revisions for a complete comparison. For now you have to bear with that the wiki diff gets out of sync after a couple of articles. Please come back later (or help me out...).

I've also tried to get more information on why the ACTA negotiations are secret. As you may know, FFII argues the negotiations cannot lawfully be held secret because ACTA is, if not law as such, in part legislative in character. And yes, if ACTA looks anything like the Canada agreement, then this is true.

Which articles are chosen? On what basis? Where are the balancing amendments? How can the Commission interpret its mandate so extensively that it in practive becomes a legislator? And how can National Parliaments stand on the side looking at what is happening as if it did not concern them? What if the Commission says trade union rights are included in the next "Free Trade Agreement"? Or environmental law?

This is exaclty what a group of MEPs asked the Commission just before Christmas. I a mild way, but yet, that very subject matter is just as controversial as IPR:

"What safeguards does the FTA contain in relation to environmental and trade union rights?"

I think it is clear that the confidentiality of the negotiations is a choice, not binding for anyone, except by that choice. And if understand the EFF research right, the US has chosen a format which does not require secrecy, it had to be additionally agreed. I got a copy of the whole statement by all ACTA participants (partly quoted by Mr McCoy before) about "Maintaining Confidentiality of Documents" from Mr. Pedro Velasco at DG Trade. According to Mr. Velasco, its "legal value" is unclear, but for the Commission it does not matter because "according to Article 4 of the Regulation (EC) No 1049/2001, access to a document shall be refused where disclosure would undermine the protection of international economic relations (exception 1a, 3rd and 4th indent). This exception applies in the present case, as the documents were drafted by third parties and these third parties oppose, at this stage, their public disclosure, pursuant to Article 4.4." (this is as far as I understand Mr. Velasco's interpretation).

It was very interesting to talk to Mr. Velasco. He said the negotiations could be understood, in a very very simplified way, as you basically could get cheap cars in exchange for IPR enforecement laws.

Interestingly enough, his materials published on the interenet also provided some kind of explanation to why people are afraid of having their iPods searched. Under "What is new" in a presentation about Enforcement of IPR Mr. Velasco says:

[it] "No longer excludes from the scope of the regulation counterfeit or pirated goods in a traveler's personal baggage where such goods are suspected to be part of a larger-scale traffic."

I hope to put more info about the understanding of the McCoy agreement soon.

Here is an agreement regulating trade in bananas. It contains tariffs, quotas, tonnage. Now let's look at the EU-Korea "trade agreement". I does not look like a trade agreement. It looks more like a (harmonising) EU-directive. No, it looks exactly like a directive. The language is identical! Where it says "Each Party" in the agreement, the corresponding EU-directive article says "Member states". It has been said this agreement is a template for Acta, that Acta will look very similar (and other agreements too).

Acta is not a trade agreement. Trade agreements concern bananas or trucks or shoes. Acta contains criminal sanctions already considered in ongoing legislative processes. Not even TRIPs is a trade agreement. The acronym reads Agreement on Trade-Related Aspects of Intellectual Property Rights. TRIPs is integreated with the UN system at WIPO, but Acta is (like the final Copenhagen Accord) made up by a self selected few in a self proclaimed closed process.

The Swedish Minister for Trade responsible for Acta says there is "hopefully a conclusion of the negotiations in 2010". At the same time the Minister for Communications demands transparency from other Acta parties.

I say that if Acta is not opened up for parliamentary scrutiny before the Council reaches a political agreement, the Swedish parliament is effectively bypassed and its members cannot call themselves legislators any more.

Today Sigmund Freud enters the public domain. Communia and the campaign site Public Domain Day is celebrating. I was struck by the expression "Without any need for prior authorization" on the celebration website, and came to think of a similar phrase from a Internet celebration speech by ISOC's Lynn St. Amour: "Those who create applications don't need permission to deploy them on the Internet."

Permission, authorization... I guess Freud had an opinion on which segment of society would have the right, have the authority, to hand out these permissions. Maybe also on how you earn that right.

And speaking of authority, I just learned that Acta negotiations were not bound by any rule to be secret. No binding treaty or law says it had to be secret. No, what happened was that the parties agreed before the formal negotiations started to keep everything confidential.

I wonder who agreed to that on behalf of Sweden. And who would have that authority? Here is an excerpt (see page 6) of what someone from Sweden must have signed:

First, we agree that documents relating to the proposed Anti-Counterfeiting Trade Agreement (ACTA) will be held in confidence. This means that the documents may be given only to government officials or persons outside government who participate in the party's domestic consultation process and have a need to review or be advised of the information in these documents. Anyone given access to the documents will be alerted that they cannot share the documents with people not authorized to see them."

In my opinion this person's signature is overriding the right of the parliament to be a legislator. It's a surrender of authority of coup d'etat dimensions.

Let's find out! May Freud be with us :-)

Update: The European Ombudsman's answer and first inspection report to FFII's complaint. Inspection of documents carried out on December 8: "[...] as regards the documents classified as "RESTREINT UE", no photocopies or notes containing direct quotes from the documents could be taken".

"ACTA needs to be set as the “gold” standard" said the President of the International Trademark Association at a Swedish Presidency conference in Stockholm two weeks ago. I said in May that Sweden could win the World Cup in transparency would the Swedish Parliament's Committee on Industry and Trade vote on a resolution that "the government immediately should make public all documentation regarding ACTA which affect, or aim to alter, Swedish citizens’ everyday life and Swedish corporations’ liberty of action and freedom of trade" and "to investigate the possibility to revoke the mandate of the Commission to negotiate about ACTA in secrecy".

In Sweden, the gold standard for democracy is based on that citizens and politicians have correct and complete information. In the context of the resolution above, the Chair and a number of prominent members of the of Committee wrote in an article that ACTA negotiations contains "nothing relating to the Internet". This was obviously a false statement leading to the conclusion that the Committee on Industry and Trade did not have correct and complete information at the time of the vote on the resolution.

Today it is beyond doubt ACTA aims to regulate the Internet. Professor Michael Geist writes that the Commission's analysis of ACTA's Internet chapter indicates "the U.S. is seeking to push laws that extend beyond the WIPO Internet treaties and beyond current European Union law".

So there are laws being pushed says Professor Geist, but the Chair of the Swedish Parliament's Committee on Industry and Trade says "ACTA is not a law".

To try to understand whether or not ACTA is law I made a diff between the Free Trade Agreement between the Republic of Korea and the EU and the the E-Commerce directive 2000/31/EC. At the conference mentioned above, the Swedish Ministry of Justice representative said that the EU/Korea FTA "illustrates what a more detailed legal framework can include". According to G8 leaders ACTA is "a legal framework" too.

Chunks of exact copies of law text in a law journal does not make a law journal into "a law". A legal framework with chunks of exact copies of law text does not make a legal framework into "a law" either, but it raises the question whether such a distinction can justify censorship (see video at 0:54). I think not. The ECJ said in the Turco case that lack of information and debate give rise to doubts as regards the lawfulness and the legitimacy of the decision-making process as a whole and that the "possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights". And indeed, in April, the Swedish Ministry of Justice acknowledged that there is a need to inform about the content of ACTA, particularly to counter the spreading of rumours. But yet it said that "Sweden can not unilaterally make public information on the contents of the draft agreement and other negotiated documents, as it would interfere with the relationship to other ACTA countries".

So we have a conflict. On one hand Swedish citizens have a right to effectively exercise their democratic right to scrutinize all information which has formed the basis of a legislative act, on the other disclosure must not interfere with the relationship to other ACTA countries.

In FFII's complaint to the Ombudsman regarding the Council's refusal to give access to ACTA documents a solution is proposed: "It is possible to both protect international relations and transparency, by informing negotiating partners beforehand that legislative texts will be made public. [...] Then, with a new mandate that takes into account the importance of informing other parties of the democratic nature of the Community, the Community can join the negotiations again."

ACTA will certainly form "the basis of a legislative act" as the ECJ formulated it. Therefore I don't think the members of the Committee on Industry and Trade would again reject a motion on the basis that "ACTA is not a law" or that "international relations" overrides the rights of citizens. That is why I will try to update the motion and have it retabled on January 19 when the Committee convenes again. You are welcome to help me here: http://etherpad.com/public-acta.

After all, what's at stake is the meaning of the expression "gold standard".

A tv-documentary from the Kyoto negotiations yesterday and waking up today thinking about the parliament's way of working in the light of the existence of etherpad, I thought of proposing another way of producing/negotiating documents like resolutions and treaties.

1) all delegations submit their own version

2) all delegations vote on all versions and winner is nominated

3) all delegations gets 50 words and 200 characters to improve the winning text on a public etherpad

Wouldn't that be fantastic?

Dagens Nyheter reports that Swedish solar cell researchers seem to be caught between a rock and a hard place. On one hand they have the know how to produce cheap electricity in countries without developed electricity grid infrastructure. On the other they have an expectation from the funders, among others the Swedish Energy Agency and Vinnova Foundation, that their research lead to business development. "Swedish tax money must benefit Sweden", they say, and "patents are important".

Since the guys at Vinnova knows the earth is round and that there is no cosmic dumpster at the end of the world where you can drop your stuff, I think the argument "Swedish tax money must benefit Sweden" actually provides a more global perspective than it sounds like. So I'm not worried about that statement. What is more worrisome is the statement "patents are important".

Yes indeed, they increasingly are since they tell you what you cannot do without a licence. That permission today may include saving lives and/or saving the planet.

But there is more to the patent problem than that moral dilemma. The meme "Patents Foster Uncertainty and Risk" launched last year by EPO is getting stickier. Large companies keep cross licensing their way out of the patent inflation mess and initiatives like Global Innovation Commons is copying the principles from the free software manifesto. On top of that, the Pirate Party argues there is no place for the patent system in an information driven economy. I think they got 13% of the young vote in Berlin.

I think it is time to listen up. If the increased inaptness of the patent system is a trend related to the growth of collaboration and free knowledge on the internet, the Vinnova guys have to answer some hard questions from the Swedish tax payers. Like why would Sweden benefit from being known as a promoter of litigation? What is the net GDP loss of not taking the opportunity to make "Made in Sweden" equivalent to clean water, pure power and sustainable and collaborative development?

As Anders Hagfeldt put it:

- Of course I would like to see a positive development in the Third World. You do not want to be a bottleneck for development.

I agree. Let's remove the bottlenecks.

Just a short note on the result of the vote on the Stockholm Program Resolution. We started off negotiations with two quotes from the Challenge Report (links below) about two weeks ago:

"The EU is rooted in the principle of freedom. Security is only a tool in support of freedom which must be applied through the rule of law and subject to human rights obligations." Mid term report (page 15)

"Security only comes from the respect and protection of human rights and fundamental freedoms through the rule of law, and liberty should be placed as the starting principle on which the EU’s Area of Freedom, Security and Justice should be rooted and developed." Final policy recommendation (page 3)

and ended up with the following text adopted:

[The European Parliament] Stresses that the EU is rooted in the principle of freedom; points out that, in support of that freedom, security must be pursued in accordance with the rule of law and subject to fundamental rights obligations; states that the balance between security and freedom must be seen from this perspective;

A very good result on that particular amendment I'd say :-)

Standard solution to queuing problems in St Josse, Brussels

To prioritise traffic on the internet can be seen as a way to organise a queue in case there is more demand than the pipes can take. Then obviously, regardless of how cleverly you line people up, you can never come around the basic problem: The reason for the queue is that there is more demand than capacity at a certain moment in time. We experience this when using any public communications method, like taking the bus or the metro. If you are Swedish, you know exactly what a public service queue is if you try to buy wine and beer on a Friday evening, just before Systembolaget closes.

It is beyond my understanding why companies would be investing billions of euros in new clever ways to organise their queues rather than just make more capacity available. Yet I hear this is about to happen. So what's in it for these companies? Really?

I hope to learn exactly how clever queuing can be profitable if you can freely go to another internet service provider where there are no queues.

Maybe that's the trick? To make sure you cannot get a queue-free internet? Who would like see that happen? Any takers?