Here ares some of the expressions used by the MEPs who took part in the 40 minute debate last night:  “Lack of sensitivity”, “Double standards”, “We are irritated with you”,  “Your position is very disappointing”, “The EU practices obstructionism at WIPO”, “The EU blocks steps forward”, “The Treaty isn´t charity, it is a question of rights”, “ludicrous that digital formats don´t increase access”, “You just speak bla, bla, bla”,  “For public debt binding law, for rights of blind voluntary recommendations”, “Don´t use creators as a barrier”, “I cannot understand the rigidity of the Commission at WIPO” and “Copyright is a glaring barrier to access”.

Here you can listen to the debate: http://www.europarl.europa.eu/sed/speeches.do?sessionDate=20120215

Without any political escape in sight and under great dialectical pressure  Commissioner Barnier lamely tried to get away with a few vague promises of an “open dialogue of stakeholders”, “leave all options open”, and “we want a pragmatic solution.”  In the end Barnier was forced to assume the commitment to seek a mandate from the Council and the Commission to negotiate a binding treaty. He said it would not be easy because there were a number of member states who opposed a treaty. He called on the Parliament to support his task. This is the first time the European Commission has called for support of a binding Treaty for the Visually Impaired and Print Disabled.

David Hammerstein, TACD

1. Dado que la UE apoya tratados vinculantes de la OMPI para otros fines, ¿cómo justifica la Comisión que proponga un nivel inferior de protección mundial para los discapacitados?

2. ¿Considera la Comisión que su actuación en relación con el tratado de la OMPI responde plenamente a los deseos formulados por el Parlamento Europeo en su informe «Liberar el potencial de las industrias culturales y creativas», en el que se pide un tratado jurídicamente vinculante en el marco de la OMPI?

3. ¿Considera la Comisión que su oposición al tratado de la OMPI es coherente con su propia estrategia 2010-2020 para los discapacitados, que persigue específicamente la eliminación de obstáculos a la inclusión y la creación de una cultura de igualdad de oportunidades?

4. ¿Considera la Comisión, a este respecto, que la vigente legislación internacional y de la UE está en consonancia con los objetivos de la Convención de las Naciones Unidas sobre los derechos de las personas con discapacidad, en especial con sus artículos 21 y 30, y con las obligaciones que se derivan de la Carta de los derechos fundamentales de la Unión Europea, instrumentos ambos que son contrarios a la discriminación de los discapacitados? ]]> http://tacd-ip.org/archives/579/feed 0 http://tacd-ip.org/archives/575 http://tacd-ip.org/archives/575#comments Tue, 14 Feb 2012 08:37:44 +0000 david http://tacd-ip.org/?p=575 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)

]]> http://tacd-ip.org/archives/575/feed 0 http://tacd-ip.org/archives/568 http://tacd-ip.org/archives/568#comments Thu, 09 Feb 2012 17:13:54 +0000 david http://tacd-ip.org/?p=568 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.

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.

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.

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

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!

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.

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)