IP Policy Committee blog

Press Release:

Oral Question, Debate and Resolution in European Parliament

Wednesay the 15^th and Thursday the 16^th of February, 2012

Should there be an international exception to copyright to help end the “book famine” for tens of millions of blind persons?

The European Parliament debates the EU´s support for a Global Treaty for the Visually Impaired and other print-disabled persons

At present over 95% of published books are not available in accessible formats for visually impaired and print-disabled persons in Europe and in the rest of the the world over 99% of reading material is unavailable for tens of millions visually disabled persons. This “book famine” occurs  despite the fact that state-of-the-art technology could provide much greater cross border access to millions of blind and print disabled persons inside and outside the EU. To confront this problem of “book famine” the World Blind Union and the European Blind Union have proposed an international Treaty at the World Intellectual Property Organization to establish an International exception and limitation to copyright to facilitate the cross-border movement of reading material formatted for the blind and visually impaired.

Despite enjoying the support of most countries of the world this initiative at World Intellectual Property Organization for an internationally binding treaty has not been supported by the European Commission and Council in contradiction with its legal obligations under the UN Convention on the Rights of Persons with Disabilities.

On Wednesday, February 15th the European Parliament Plenary will debate an oral question presented by the Petitions Committee on this question. Commissioner Barnier will respond. 

On Thursday, February 20th a resolution will be voted on this issue in the plenary. 

For more information in Strasbourg please contact David Hammerstein, TransAtlantic Consumer Dialogue at 0032 474472763 or 0034 600266743

     Dan Pescod, European Blind Union, 

00442073912009

              00447787938788

The debate can be watched on webstream at  http://www.europarl.europa.eu/sed/video.do

Some of the MEPs who have confirmed to speak in the plenary on the issue are Michael Cashman, a British Labour MEP,  Erminia Mazzoni, an Italian Conservative (chair of Petitions Committee), Magrete Auken, a Danish Green and Luigi Berlinguer,  an Italian Socialist. Commissioner Michel Barnier is expected to respond.

The European Library service has published a short background paper for the information of MEPs which I attach below.

You can find TVI on the Agenda:

http://www.europarl.europa.eu/plenary/en/home.html

The debate can be watched on webstream at  http://www.europarl.europa.eu/sed/video.do

Here is a briefing by the European Parliament Library:

120270REV1-Blind-peoples-access-to-books-FINAL3(2)

Blind and dyslexic people need to read books in accessible formats such as braille, formatted audio or large print books. These are often made thanks to exceptions to national copyright laws that now work smoothly in most EU member states. Nevertheless, these books cannot legally cross borders.

Please support the legal right for blind people to access books by urging the European Commission and Council to agree to a binding worldwide “books without borders” treaty – something the EU has not been supporting until now.

An oral question in support of the European Blind Union´s petition will be debated on Wednesday, February 15th and voted upon in the plenary  at noon on Thursday, February 16th.

Ask your Members of the European Parliament (europarl.europa.eu)  to help end book famine face by blind and dyslexic people.

1. Myth: “ACTA is about large-scale and organized infringements of intellectual property”

Reality: The criminal sanctions proposed in ACTA could apply to not-for-profit infringements of copyright.  ACTA´s article 23.1defines “commercial scale” violation of IPR as any “direct or indirect economic or commercial advantage”.  This term is very unclear and, therefore,  greatly disproportionate penalties could easily be applied to repetitive, non-commercial file sharing.

2. Myth “ACTA contains safeguards for fundamental rights and will not lead to extra-judicial censoring, filtering or blocking.”

Reality:  ACTA strongly promotes the extra-judicial “cooperation” of Internet Server Providers (art- 27.3) with the entertainment industry  and if that does not occur threatens to apply criminal measures for “aiding and abetting” (art. 23.4). Internet servers will therefore be forced to deploy extra-judicial filtering of communications and deletion of content on-line. Privacy, data protection and freedom of expression could all be endangered without the involvement of due-process guarantees and under the guise of “self-regulation”

3. Myth “ACTA does not change EU law”.

Reality: The European Parliament study and other independent studies on ACTA all conclude that ACTA does change EU law.

ACTA promotes extremely high “damages” to be calculated according to “market or retail value”. According to all studies published on ACTA this clearly contradicts  present EU IPR law.

It introduces new criminal measures that must be applied by EU member states when no harmonization of criminal measures exists in EU law.
ACTA will be used as an international “golden rule” to push upon the European Parliament and member states a new framework for EU criminal sanctions, IPRED.

4. Myth: “ACTA protects EU jobs”

Reality: No serious empirical evidence has been presented to back up this assertion; only  industry financed studies about “lost revenue”.  The opposite is the case: Many times more jobs are created in technological industries and SMEs that enjoy flexible IPR frameworks than jobs in traditional content management industries. ACTA could easily “chill innovation” of up-start, new innovative firms and venture capitalists by the threat of high penalties and criminal sanctions.  ACTA “has no advantages for EU citizens” according to the official EP study and only favors some big businesses anchored in old business models.  Many academic studies point to the “red-line” across which overly strict IPR enforcement prevents more new jobs and innovation than it protects.

5. Myth: “ACTA protects health and safety”

Safety and health concerns are not at all a priority in ACTA.  ACTA could even weaken the credibility of the fight against dangerous counterfeiting and fraud by ambiguously confusing large scale organized crime with not-for-profit file-sharing and flexible models of access to knowledge. China, Russia and other countries accused of large scale violation of IPR are not parties of ACTA.

ACTA could have perverse anti-competitive effects on business models in the IT field. By strongly promoting copyright enforcement as a key function and legal responsibility of Internet Server Providers (under the guise of “self-regulation), it encourages the “functional bundling” of communication services and cultural content management.  In other words, ACTA helps builds a new legal environment in which risk taking in the content sector is inherent and obliged. Following this logic, content management and promotion should be integrated into the traditional business operations of Internet and Telecom servers.

The European Commission has in the past proposed “functional unbundling” in the Telecom sector (not to speak of the energy sector) on other structural grounds and there exists a general EU policy against the accumulation of sectors along the same production and service cycle.  Nevertheless, the legislative momentum created by ACTA and the forthcoming IPRED proposal will strongly enhance the possibilities of a certain “common destiny” of the content industry and ISPs, constructing a powerful common chain that at once delivers cultural and technological services.

Thus, we could be witnessing how a deeply flawed IPR enforcement policy, epitomized by ACTA and other measures, is helping to create a very “uneven playing field” with increasingly dominant, all-encompassing companies.

If this is the case, it is not good news for consumers, nor for new innovators nor for EU competition policy.

Notes on ACTA from a Consumer Perspective

1. Is ACTA really an anti-counterfeiting agreement?

Consumers are in favour of measures that confront commercial fraud, especially when it affects public safety and health, the quality of consumer products or the false representation of a trademark. Nevertheless, real counterfeiting or trademark fraud, that can really be dangerous for consumers, should not be in the same agreement as other very different issues such as copyright infringement. The lack of a definition of counterfeiting in accordance with international law creates confusion and contradictions in this proposal.
2. Consumers consider that some ACTA could mean higher prices and fewer innovative products.
Consumers are concerned ACTA could increase the price of key consumer products by erecting new costly legal barriers to competition and innovation. The new enforcement measures proposed could increase the legal costs and risks of placing new products in the market by raising the stakes of possible legal sanctions and economic penalties. Innovation could clearly by “chilled” if new disproportionate and harsh enforcement proposals were approved that are based on “retail or market value of goods”. These proposed measures could also be used by some countries as part of protectionist policies against the entry of competitive goods which could also raise prices. Flexibilities and exceptions to intellectual property rights that favour lower prices of essential goods for consumers worldwide, could also be threatened by ACTA border measures.

3. Consumer protection demands a clear definition of “commercial scale” infringement on Internet.

EU officials have insisted on “leaving it open for judicial interpretation” the term included in ACTA about persecuting violations of IP of “commercial scale”. By leaving this issue open in an ambiguous way individual consumers could suffer penalties and harassment because “commercial scale” can be interpreted as the “accumulation of individual acts” as opposed to “willful criminal intent” planned and organized on a large scale. Internet file-sharing or other non-commercial actions by individuals should not in any way, directly or indirectly, be subject to any enforcement measures as they can be in the application of ACTA.

4. Consumer privacy, data protection and freedom of expression must be guaranteed in face of Internet policing and filtering.

“Intermediary liability” of service providers, mandated directly or encouraged indirectly, could deprive consumers of the neutrality of Internet services and legitimize the cutting off of internet service without prior judicial due process. Consumers consider privacy and data protection as a fundamental rights that must take priority over any measure of Intellectual Property protection. Consumers also reject any measure that restricts freedom of expression except in cases of public security and health. The EU Data Protection Supervisor and the UN Rapporteur on Freedom of Expression have voiced concerns about ACTA in this regard.

5. Consumer and citizen participation in multilateral institutions must be safeguarded and not circumvented by the new structures that limit democratic process, citizen involvement and participation of the South.

Consumer and citizen participation could be seriously limited by the setting up of a new plurilateral ACTA organization that by-passes existing international institutions, such as WIPO or WTO, where consumer organizations have certain guarantees regarding their involvement. . Consumers also have concerns about the democratic credibility of ACTA institution that do not include most countries from the South.

David Hammerstein, TransAtlantic Consumer Dialogue

THE EUROPEAN COMMISSION REJECTS  ASKING FOR A EUROPEAN COURT OF JUSTICE OPINION ON the LEGALITY OF ACTA.

DESPITE MANY DOUBTS AND LEGAL UNCERTAINTIES IN THE ACTA TEXT THE EC REFUSES TO ALLOW A European Court opinion on its legality and also rejects the carrying out of an independent study the impact of ACTA on innovation, development and fundamental rights. Why is the European Commission afraid of a court opinion and an empirical evaluation of ACTA?

- The lack of a clear definition of “commercial scale” could sanction the application of criminal measures against non-commercial file sharing on the Internet.

- The proposal of Internet Server legal liability and private policing of the net is like making the Post Office responsible for what is inside the letters they deliver,  under the guise of mandated “self-regulation”, has serious implications for judicial due process and for privacy.

- ACTA suggests measures that could undermine privacy: Peter Hustiinx, EU Data protection Supervisor on ACTA: “IP Rights should not be placed above individuals´rights to privacy and data protection”.  ACTA proposals could contradict EU data protection law.

- By supporting ACTA´s  proposals of  filtering and blocking of digital sources of information the EU could erode its moral high ground in defend some key human rights.

ACTA is economically regressive, hurts consumers and chills innovation.

ACTA sends out the wrong message about successful business models: ACTA  puts forward a global benchmark that suggests that more repression will help innovation and development; the opposite is the case.  More IPR repression ends up being ineffective, is used by non-democratic governments to stifle freedom of expression and often defends old rigid business models that deny global consumers competitive prices to many essential goods and cultural access. The threat of greater penalties for IPR violations chills innovation by preventing companies from taking risks, creating legal barriers to trade across borders

LEGISLATION LAUNDERING: EU laws through the back door.  The European Commission has used a secret international trade agreement to try to push through a series of repressive measures suggested by a few large economic interest groups that would have been very difficult to get through most national parliaments in an open debate. With ACTA a number of EU member states will be forced to introduce criminal sanctions in their national laws and the Commission will have new arguments to push forward the criminal measures (IPRED) against “piracy” that has been blocked in the Council for years due to opposition of many member states.  ACTA seeks to establish criminal sanctions for IP on a global scale.

ACTA AIMS AT CREATING A NEW MODEL OF GLOBAL GOVERNANCE THAT BYPASSES NORMAL PROCEDURES, TURNING THE BACK ON INTERNATIONAL INSTITUTIONS: ACTA, and the ACTA institution it will create,  bypass normal multilateral organizations like the WTO or WIPO. It establishes a precedent where a few rich countries decide for the rest of the world a benchmark that afterwards would be the basis of free trade agreements that impose changes in national laws.

HURTS COUNTRIES of SOUTH:

ACTA is opposed by most developing countries as being a tool for protectionist policies of the North as it proposes to drastically increase border controls that could be used to inhibit legal international trade. (just last week Dutch authorities seized Indian generic drugs) A European Parliament official policy department study published in December of 2011 on Intellectual Property Rights and the Fight Against Poverty concluded that ” the implementation and application of ACTA and other efforts to fight counterfeit could have negative effects especially on poor developing countries” “The EU should not push developing countries, especially least developed countries, to accept far-reaching IP standards…regarding seeds/agriculture and health/medicines”.  ACTA does just that!

MEP Gallo´s and Commissioner Barnier´s
crusade against access to our cultural legacy

French Member of the European Parliament Marielle Gallo is leading a destructive political campaign to close the door on easing access to the vast cultural legacy of millions of books, films and songs that are not presently available to citizens due to being out of print, off the market and whose authors are often not known or not able to be located.

MEP Gallo along with her French political companions Sarkozy and EU Commissioner Barnier are determined to prevent mass digitization of our heritage, which is the only way to recover this knowledge and culture for broad social use and innovation. According to Gallo, Barnier and Sarkozy these unaccessible works are “better dead than read” in order to protect the business of their friends in the copyright industry.

Gallo and her allies have pushed forward a series of obstructive legislative amendments aimed at making practically impossible for libraries, universities, broadcasters and IT industries to easily identify and clear for cultural use  “orphan works”.  By proposing a series of torturous and expensive procedures to be followed by public libraries Gallo hopes to render totally useless the Orphan Works Directive now being considered before the European Parliament. The objective of Gallo, Barnier and the French Government is to try to block a series of mass digitization contracts between libraries, universities and Google. Without any other viable plan for mass digitization the French right has opted for a “scorched earth” policy to assure that  the the pages flake, the celluloids disintegrate and the sound recordings fade. Instead of a EU framework that would encourage a digital renaissance of our inaccessible heritage through easy author search mechanisms, balanced public-private partnerships and clear limits on claims and renumeration,  the fervent Gallo brigades of copyright extremists insist on enforcing cultural euthanasia.

European Digital Rights on ACTA´s Democratic Vacuum
The European Parliament has given its legal service the task of explaining
why a circle is a square – or rather why ACTA is simultaneously in line with
existing EU legal provisions, while not denying that it will ultimately
require changes to EU law.

The sleight of hand of the European Commission relies on the fact that
Member States will have to approve the criminal measures of ACTA, while the
EU will have to approve the rest.

The first task is therefore to beat democratically elected national
parliaments into submission. They are doing this by holding high-level
signing ceremonies in, for example, the World Trade Organisation. No
parliament will want to be seen to holding back an initiative that appears
to have such momentum – even though ACTA lives, and has always lived in a
democratic vacuum and has no democratic legitimacy.

Having being pushed into agreeing to impose criminal sanctions (with no
minimum level to ensure any level of proportionality) for undefined
“commercial level” infringements or “indirect” infringements, the 27 Member
States will implement 27 different levels of criminal sanctions. Then, to do
its duty of harmonizing the single market (which it has failed to do on
exceptions and limitations, licensing, etc), the European Commission will
have no choice but to propose a Directive on criminal sanctions for
copyright enforcement, harmonizing around the more restrictive countries’
policies. It is, after all, a complete coincidence that the Commissioner
responsible and the MEP leading the charge in the Parliament are from the
same political party, in France, which has some of the most restrictive,
repressive copyright enforcement laws in Europe.

And there you have it, EU legislation proposed as a reaction to ACTA…
which is already in line with EU law… apparently. No wonder the European
Parliament legal service representative at today’s Legal Affairs Committee
meeting looked uncomfortable.

EDRI (EUROPEAN DIGITAL RIGHTS)

As ACTA D-day approaches the debate heats up in Brussels. Today French Sarkozyist MEP Marielle Gallo started leading the forward charge of the  music and entertainment lobbyist light brigade.   MEPs are already being bullied into rushing into parliamentary approval of ACTA within 3 or 4 months without even seeking the opinion of the European Court of Justice.  Ms. Gallo ended the today´s presentation of her enthusiastically pro-ACTA opinion in the Judicial Affairs Committee by warning of the dire consequences of “losing 2 more years” waiting for a European Court ruling on how the implementation of ACTA could affect fundamental rights, as requested by Green and Liberal MEPs.

Ms. Gallo called upon MEPs to “ignore the far-fetched opinions” of those who question the “key role of IPR in innovation and the knowledge based economy.”   The general assessment of Gallo´s draft opinion on ACTA states that ACTA is compatible with EU law, that ACTA includes safeguards “against abuse and in favor of proportionality, that it respects privacy and that it poses no obstacle to legitimate trade”.  She also dismissed any criticism on the lack of transparency by lauding the great efforts made by the European Commission in informing the Parliament and by citing an ombudsman report that confirmed the right of the Council to restrict certain public access to documents during an international negotiation.

Pirate MEP Christan Engstrom responded to Gallo by quoting the opinion of the EP legal services that with calculated ambiguity says “it appears that the agreement per se does not impose violation of fundamental rights…but depends on how it is applied in EU member state laws.”  Engstrom openly attacked the lack of proportionality in ACTA that  proposes “retail value” damages and remedies. He gave the example of a teenager´s hard disk that might have up to a half million downloaded songs and who could theoretically be sued for astronomical damages. He asked: “What would the family do? Sell their house?”  He also criticized the dangerous vagueness of “intermediary cooperation” of Internet servers with IPR enforcement. While the graduated response or “3 strikes” for internet disconnection is not directly spoken of in ACTA, he insisted that the preparatory documents be made public in order to clarify this question. He added that ACTA is “at best borderline on fundamental rights” and an European Court of Justice opinion was needed to clarify the legality of ACTA´s implementation by member states.  He ended by saying that with ACTA we would “lose our moral high ground when dealing with countries like China on human rights questions.”

Liberal MEP Thein also supported the call for a European Court opinion. Austrian Green MEP Eva Lichtenberger explained that ACTA had an uncertain, open-ended legal base that needed guidance from the ECJ regarding its scope and application.

A very nervous and extremely cautious EP legal service representative took the floor to say that while ACTA must respect the EU Treaty it may not be in line with existing legislations of EU member states and that might suggest an eventual amendment of EU law. In other words, the Parliament´s legal services is discreetly admitting that ACTA is an exercise of “legislation laundering”, of using the instrument of an international trade agreement to bypass normal political procedures to force legal changes, first in the EU member states and then eventually in EU law itself. This unusual opaque political strategy means introducing draconian IPR criminal enforcement through the back door without the democratic guarantees of a normal bottom-up procedure. It tries to bully EU legislators into new laws that they have not been able to consider thoroughly and openly.

Now there will also be ACTA opinions from other EP committees (Development, Civil Liberties and Industry) while the lead report will by drawn up by the International Trade Committee. Shortly after  the final  plenary vote on the ACTA report there will be a “consent” vote on ACTA (“yes”, “no” or “abstention”) probably in the month of April or May.

If citizens do not want their democratic representatives to be force fed a dangerous international treaty they should make their voices audible before it is too late.