[Chapter-delegates] Also consider "institutional arrangements" and development, was Re: EU consultation on ACTA

Fri Mar 19 10:41:43 PDT 2010

Hi all,

Christian, Olivier, and Christopher have already made important points. I 
do support the change to more stringent language for the timing and 
conditions of disclosure, towards "as early as possible."

One important development is the recent leakage of possible ACTA language 
on institutional arrangements. A new organization would be created, in 
parallel to WIPO and the WTO, founded by the first signers (present 
negotiators) of the treaty but open to other countries to join.

I see this in the philosophy of the infamous "coalition of the willing" 
point of view. Shame, and disadvantage, on those who don't join.

Second point about the institutional arrangements: ACTA and its 
institutionn will be in practice meddling in Internet Governance, as far 
as we can see from its interest in the Digital Environment and the laws 
enacted or in process so far in France, the UK, England, and elsewhere.

To build up the ACTA institution the way it seems envisaged, i.e. as an 
intergovernmental organization, is fully within the logic of the ACTA 
parties but clearly in violation of the WSIS principles of 
multi-stakeholder participation in all Internet Governance arrangements.

The draft prepared by ISOC staff does mention these principles. It was 
prepared before yesterday's news about the leak on institutional 
arrangements. It could be made sharper or have a few more words on the 
matter.

Finally: the consultation is of course Eurocentric, it being the EU 
consultation. But ISOC cannot respond to a local consultation on a global 
issue with a local view. The effects that ACTA can have on countries like 
Mexico and Morocco, who are in the negotiations, and many other developing 
countries later on, whether they add themselves as signatories or not, has 
troubling aspects.

These development-related aspects should be mentioned. They are in the 
same discussion as TRIPS (according to some ACTA negotiators, ACTA has no 
further purpose than sharpening the language of TRIPS, somewhere between 
DMCA+ and TRIPS+.)

I hope this is found helpful.

Yours,

Alejandro Pisanty

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      Dr. Alejandro Pisanty
UNAM, Av. Universidad 3000, 04510 Mexico DF Mexico

Tels. +52-(1)-55-5105-6044, +52-(1)-55-5418-3732

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On Fri, 19 Mar 2010, Christian de Larrinaga wrote:

> Date: Fri, 19 Mar 2010 16:29:45 +0000
> From: Christian de Larrinaga <cdel at firsthand.net>
> To: Christine Runnegar <runnegar at isoc.org>
> Cc: chapter-delegates at elists.isoc.org
> Subject: Re: [Chapter-delegates] EU consultation on ACTA
> 
> Christine
>
> Excellent note.  I hope the meeting spends its time pushing for an unequivocal opening up of ACTA.
>
> One thought I'd welcome you taking (at the back of your mind) into the meeting with you is the Digital Economy Bill in the UK. To give one example of an issue. There is a risk to community wifi hotspots that could make it so onerous to operate due to requirements to defend IPR, filtering measures and so forth that some senior telecoms policy experts see the UK losing its community and small business open wifi hotspots.
>
> The linkage in the Bill between networks and IPR enforcement of content is breaking neutral carrier status of access networks and this will ossify the deployment and evolution of edge networks. If something similar is in ACTA then this could extend around the world.
>
> A second thought to have in the bottom draw is the recent judgement by a spanish judge in relation to the legality of linking to content and use of P2P services for not for profit reasons. This is yet another indication that the position of the IPR lobby is not a legal one at least not everywhere and is primarily defensive of a business model.
>
> http://www.dmwmedia.com/news/2010/03/15/spanish-court-declares-p2p-link-sites-filesharing-legal
>
> Spanish Court Declares P2P Link Sites, File-sharing Legal
> Authored by Mark Hefflinger on March 15, 2010 - 11:21am.
> Madrid - A Spanish court has upheld its previous finding that a site
> aggregating links to downloads on file-sharing networks does not
> infringe copyrights, TorrentFreak reported.
>
> The judge in the case previously rejected Spanish copyright society
> SGAE's petition to shutter ElRincondeJesus.com as an injunction before
> the trial started.
>
> Judge Raul N. García Orejudo ruled that providing links is not the
> same as distribution of media, and noted that the site does not derive
> direct or indirect profits -- and is therefore not a business.
>
> However, the judge went even further, and commented directly on the
> legality of file-sharing by individuals.
>
> "P2P networks are mere conduits for the transmission of data between
> Internet users, and on this basis they do not infringe rights
> protected by Intellectual Property laws," Orejudo said in the ruling.
>
> "Therefore, if an individual uses P2P networks like eDonkey or
> BitTorrent to obtain copyright material for non-profit reasons, the
> act is completely legal."
>
> This suggests to me that there is an important discussion to be had on IPR by governments but that there really is not sufficient harmonisation nor consensus between the legal systems to establish a one solution fits all approach.
>
> A third thought. Internet can support diversity in and between markets. We do not need a one size fits all solution. It is not a technical requirement.
>
> best regards
>
>
>
> Christian de Larrinaga
>
>
>
> On 19 Mar 2010, at 08:10, Christine Runnegar wrote:
>
>>
>> Dear ISOC colleagues,
>>
>> Thank you Alejandro for alerting the ISOC community to the upcoming European
>> Commission public consultation on the negotiations concerning the
>> Anti-Counterfeiting Trade Agreement (ACTA).
>>
>>
>> EC public consultation on ACTA
>>
>> As many of you may already know, a document said to be a section of the
>> draft treaty known as the "Digital Chapter" was recently made available on
>> the Internet. As far as I am aware, there has been no official confirmation
>> of this document or its contents, so we need to be careful in drawing
>> conclusions.
>>
>> We hope that the European Commission's public consultation on 22 March 2010
>> in Brussels will provide further information regarding the substance of the
>> matters being negotiated as they relate to the Internet so that ISOC can
>> speak from an informed position. To this end, ISOC proposes to send Frederic
>> Donck (Director European Regional Bureau) and Christine Runnegar (Senior
>> Manager Public Policy and coordinator of the ISOC Working Group on emerging
>> policy responses to online copyright infringement) to observe and report
>> back to the broader ISOC community.
>>
>> If anyone else in the ISOC community is planning to attend, perhaps we could
>> arrange (off list) to meet before the meeting starts.
>>
>> ISOC is also proposing to submit a brief statement in advance of the meeting
>> on Monday (attached). We apologise for the short time frame, and welcome
>> your comments and suggestions by cob Friday 19 March 2010 please.
>>
>>
>> Additional background
>>
>> It appears the participants in the ACTA negotiations intend to include
>> provisions to specifically address the enforcement of intellectual property
>> rights in the digital environment (see See Background in the NZ Invitation
>> for Submissions on Enforcement in the Digital Environment
>> http://tinyurl.com/yz6xurp).
>>
>> Further, the Summary of Key Elements Under Discussion provided by the
>> European Commission Director General for Trade, in November 2009, (see
>> http://tinyurl.com/yfd7ste) states:
>>
>> "This section of the agreement addresses some of the special challenges that
>> new technologies pose for enforcement of intellectual property rights.
>> Elements under discussion in this section include the availability of
>> remedies:
>>    - 	in cases of third party liability, without prejudice to the
>> availability of exceptions and limitations;
>>    - 	related to infringing material online, including limitations on the
>> application of those remedies to online service providers;
>>    - 	related to the circumvention of technological protection measures,
>> including the availability of exceptions and limitations;
>>    - 	related to the protection of right management information, including
>> the availability of exceptions and limitations."
>>
>>
>> NZ Consultation
>>
>> The New Zealand Ministry for Economic Development has also launched a public
>> consultation. More information regarding this consultation can be found
>> here: http://tinyurl.com/yarv743. We are also presently proposing to submit
>> a brief statement along the lines of the statement for the EU consultation,
>> but we will shortly provide you with further information regarding this.
>>
>> Kind regards,
>> Christine
>>
>> ______________________
>>
>> Christine Runnegar
>> Senior Manager Public Policy
>> Internet Society
>> Galerie Jean-Malbuisson 15
>> CH-1204 Geneva
>> Switzerland
>>
>> Tel: +41 22 807 1455
>> www.isoc.org
>> <Draft letter re ACTA 18 Mar 2010.pdf>_______________________________________________
>> Chapter-delegates mailing list
>> Chapter-delegates at elists.isoc.org
>> http://elists.isoc.org/mailman/listinfo/chapter-delegates
>
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