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Glyn Moody's look at all levels of the enterprise open source stack. The blog will look at the organisations that are embracing open source, old and new alike (start-ups welcome), and the communities of users and developers that have formed around them (or not, as the case may be).

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ACTA Update IV

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This is a continuation of my previous post examining the European Commission's attempt to dispel what it calls ten "myths" about ACTA [.pdf]. I'm commenting only on the most egregious attempts by the Commission to talk away the issues - it would be too tedious to go through every point in detail.

6. ACTA favours IP right-holders. ACTA eliminates safeguards and exceptions existing under international law.

Quite to the contrary, ACTA is drafted in very flexible terms and contains the necessary safeguards to allow the participating countries to strike an appropriate balance between all rights and interests involved, in line with their economic, political and social objectives, as well as with their legal traditions. All safeguards and exceptions under EU law or under the TRIPs Agreement remain fully preserved.

Notice how the "myth" has two components, but that the European Commission only answers one of them. The whole treaty is predicated on the assumption that more enforcement is good: there is no consideration of the collateral damage it might inflict, for example on members of the public. That, of course, is because the public was never allowed to present its views; inevitably, the resulting document is incredibly one sided and biased in favour of the copyright industries.

This can be most clearly seen in Article 9, which spells out the damages for infringement (my emphasis added):

1. In determining the amount of damages for infringement of intellectual property rights, a Party’s judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

2. At least in cases of copyright or related rights infringement and trademark counterfeiting, each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority to order the infringer to pay the right holder the infringer’s profits that are attributable to the infringement. A Party may presume those profits to
be the amount of damages referred to in paragraph 1
.

3. At least with respect to infringement of copyright or related rights protecting works, phonograms, and performances, and in cases of trademark counterfeiting, each Party shall also establish or maintain a system that provides for one or more of the following:

(a) pre-established damages

(b) presumptions for determining the amount of damages sufficient to compensate the right holder for the harm caused by the infringement; or

( c) at least for copyright, additional damages

Consider, now, how this might apply to sharing a few mp3s online. According to ACTA, the copyright holders can demand damages equal to the "lost profits" from those mp3s. And if you want to know how the recording industry calculates those, ask Jammie Thomas-Rasset, who was fined $1,920,000 for sharing 24 songs in the US. When that was later reduced to $54,000, the recording industries demanded a retrial because they felt it was far too low.

ACTA essentially validates this kind of deranged calculus, and enables copyright companies to demand huge damages "to compensate the right holder for the harm caused by the infringement", even though it is impossible to quantify that harm in any sensible way when you're dealing with digital file sharing. Indeed, arguably there is no harm, since file sharing can actually boost sales - just ask Paul Coelho; but ACTA's tunnel vision naturally cannot contemplate such a possibility.

Given the utterly disproportionate damages that can be claimed thanks to ACTA's wording, it is extraordinary how the members of the European Commission can claim with any seriousness that ACTA does not "favour" rights-holders. Perhaps they imagine everyone earns the same as they do - 240,000 Euros a year - and can easily find a few million Euros down the back of the sofa if they need to....

8. ACTA leads to "harmonisation through the backdoor". A study ordered by theEuropean Parliament's committee for International Trade (INTA) to academics says that ACTA will require changes to EU enforcement legislation and/or to national laws.

ACTA provisions are compatible with existing EU law. ACTA will not require any revision or adaptation of EU law and will not require any Member States to review the measures or instruments by which they implement relevant EU law. ACTA is also in line with international law, in particular with the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The INTA study does not show evidence of any concrete situation where ACTA would contradict, repeal or require the modification of a single provision existing in EU legislation. This has been confirmed in very clear terms by the two above mentioned Opinions of the Legal Service of the European Parliament.

Even if ACTA is compatible with existing EU law - and that remains unclear, despite the Commission's assertions to the contrary - that's only because the whole treaty is so loosely worded. It is full of options - clauses that signatories "may" implement in certain ways.

But this is the central trick of ACTA: it is not that the treaty itself imposes new laws on participants now - the studied vagueness makes that unnecessary. What ACTA does is to create a framework whose assumptions are that laws will be passed in the future to comply with the optional, more stringent parts. In other words, ACTA is not so much about today's legal landscape, but about tomorrow's. It will allow politicians to say: "well, we really have to implement these harsher enforcement laws because it's in ACTA, and all of our partners have done so, and it would look bad if we didn't follow suit."

In fact, European commissioners aren't even waiting for ACTA to be ratified before moving down this path: with the “Proposal for a Revision of the Directive of Intellectual Property Rights” (.pdf) they are already planning to bring in harsher copyright enforcement of precisely the kind that ACTA tries to establish as a benchmark.

In other words, it's the usual copyright ratchet, whereby a country's copyright maximalism in one area is used as an excuse to "harmonise" everyone else's. That's precisely what has happened with copyright term, for example, where the varying terms for different kinds of creation - text, music, sound recordings - have gradually been extended around the world in order to bring about "harmonisation" (isn't it strange that there's never harmonisation downwards, and that it's always in favour of the copyright industries and to the detriment of the public?) ACTA seeks to use the same trick to export the worst excesses of copyright enforcement first to all signatories, and later around the world through further treaties along the lines of the Trans-Pacific Partnership.

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