PublicACTA Blog: April 13, 2010 at 4:16 pm, by Richard

Sign the Wellington Declaration

Updated 13 April at 4pm: Congratulations to all those who took part in creating a serious and substantive call on Governments to change their approach to ACTA.

The Wellington Declaration agreed by Saturday’s PublicACTA conference has been posted below. An RTF copy is available here. Translations have been undertaken in French, Spanish, German and Japanese

We urge everyone interested in protecting their digital rights to sign the petition to endorse the Wellington Declaration.

SIGN HERE

GoPetition

The signatures that had been added to the petition by 12pm today NZ time (6,645!) have been put into a document and handed over to the Negotiators in Wellington by email. A copy of that document is here: Wellington Declaration and Petition (.pdf, ~390kb)

Don’t stop signing the petition! All the names will continue to give negotiators reason to pay attention, and the full list can be presented at the next Round.

Media enquiries – email jordan@internetnz.net.nz

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PublicACTA Blog: April 11, 2010 at 3:21 pm, by Richard

The Wellington Declaration

Arising from the PublicACTA Conference
10 April 2010

(available as a .rtf text file here)

Preamble

The participants at the PublicACTA Conference of 10 April 2010 respectfully submit this, the Wellington Declaration, to the parties negotiating the Anti-Counterfeiting Trade Agreement (ACTA), for their consideration during the Wellington round of negotiations.

Consistent with the European Parliament’s Resolution of 10 March 2010 on the Transparency and State of Play of the ACTA Negotiations (P7_TA(2010)0058), ACTA should be limited to an Agreement regarding enforcement against counterfeiting (the large scale commercial production of illicit physical goods).

The first part of the Declaration deals with general matters and principles.

The second part of the Declaration deals with some of the specific points under discussion in Wellington. Read more…

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PublicACTA Blog: April 12, 2010 at 12:25 pm, by Campbell

Digest of recent news relating to PublicACTA

Anti-Counterfeiting Trade Agreement (Michael Geist radio interview)
Radio New Zealand, 12 April 2010

Activists sign petition to open up ACTA talks
ITNews Australia, 12 April 2010

PublicACTA hammers out ‘Wellington Declaration’
Computerworld New Zealand, 12 April 2010

Internet users protest secret anti-piracy talks
Radio New Zealand, 12 April 2010

ACTA: New Zealand faces ‘domestic upheaval’
PC World, 12 April 2010

InternetNZ launches petition to limit ACTA
National Business Review, 12 April 2010

PublicACTA Wellington Declaration now available, public invited to sign
Geekzone, 12 April 2010

Declaration urges big changes to ACTA
TechDay, 12 April 2010

ACTA talks set sights on transparency
National Business Review, 11 April 2010

The Wellington ACTA Declaration
P2P.net, 11 April 2010

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PublicACTA Blog: April 10, 2010 at 8:03 pm, by Jordan

We’re done!

PublicACTA is over. The declaration is almost complete – we’ll publish it tomorrow. Keep your eyes on #publicACTA to hear when – you’ll hear it first then.

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PublicACTA Blog: April 10, 2010 at 4:47 pm, by Jordan

Declaration Topics

The following are the list of topics that we aim to prepare text on.

Overarching issues:

Specific Issues:

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PublicACTA Blog: April 10, 2010 at 3:15 pm, by Jordan

Key Issue Identification process

Below are the long notes provided by tables on identifying the key issues for PublicACTA to focus on in the third session. They are provided here for interest and for the record.

Table B:

Transparency of the process: release the text. This is an IP treaty and should be done openly.

The need for ACTA – lack of a problem: Has it been established that there is a need for ACTA? It seems to be a global response to someone else’s definition of a problem.

ACTA membership: Negotiators should be asked to justify the ACTA membership and opening to other countries.

Relationship with existing IP mechanisms: ACTA shouldn’t be a knife in the back of WIPO, where some good work is already happening.

Customary and existing treaties/frameworks: New Zealand delegation needs to recognise that we have an existing Treaty (the Treaty of Waitangi). There is also other international customary law, and ACTA needs to recognise these.

Procedural issues: who pays?

US Centric: ACTA is too US-centric. Not multilateral.

The Internet as a human right: ACTA is counter to the concept of the Internet as a human right (Hilary Clinton).

Constitutional issues: ACTA should recognise freedom of speech/fair use.

Consultation with other stakeholders: There are many other economic stakeholders who should have a say.

Secondary liability & safe harbour: unhappy with these. common carrier status suggested.

User rights: There is no positive assertion of user rights in ACTA, and there should be. ACTA is framed in the negative.

Privacy: ACTA shouldn’t harm people’s privacy, by ISPs having to surveil user activity.

Enforcement and onus of proof: ACTA refers to “alleged” infringement only. The burden of proof should be on rightsholders.

Definitions: Need clarification of commercial versus non-commercial, damages, and civil versus criminal.

i.e. a fifteen year old ripping a DVD shouldn’t be treated in the same way as a factory doing thousands of DVDs. Need proportionality and ACTA needs to recognise intent. Regimes for damages are better handled in local jurisdictions.

Table C:

* Transparency at all levels as a requirement of the agreement
* TPM is beyond the Scope of Document
* Common Carrier Defininition needs to be defined
* Notice and Takedown issues should be limited to Just having carrier obligated to have a process, rather than action
* Criminalisation issues should be reduced to, intent driven approach
* Border control measures are untenable espeicially in relation to “copyright’d material”. Personal use and Again reference back to intent.
* Social good, and human right to be able to circumvent TPM, also not in scope of Doc. Remove.
* References to particular technologies, such as CAM corder should be removed, non-differing treatment based on technological avenue… sould be based on intent.
* Deceptively counterfiet good are bad, agree with most points around trademark and branding provisions.
*Accountability of negotions
* Specific Language in reference to IP… i.e Trademark, Copyright. remove references to IP.
* Recognition of natural/traditional knowledge and rights exclusions, and provisions as exist in TRIP as should they be in anything which extends that.
*Intermediary’s need to be protected, secondary liabilty provions in the bill.
* Safeharbour and Any legal enforcement (takedown) needs to be handled by the respective principles.
* NON comercial infringment SHOULD NOT be criminalised.
*Key that ACTA does not effect status of existing LAWS
* Eduction and Public debate needs to be part of the process .
*Differing cultural perspectives around the world need to be included and respected
*Economic cost/benefit analysis should be done around implcation of increased border controla and inter-agency customs info sharing.
*ACTA is about prosecuting the global spread of knowledge
*Un-even penalty reigmes in different juristrictions


Table D:

  1. That an economic cost/benefit analysis has not been done is scandalous.  All public communication should provide a holistic analysis of the implications of ACTA
  2. We call for transparency and an end to secrecy in the negotiation process.  As a result of the opaque nature of this process it is hard to form expert opinions
  3. ACTA is about prosecuting the open spread of knowledge.  We think that the govt. should be more interested in acting as a regulatory enabler rather than limiter.
  4. We think that the treaty should contain explicit guarantees that no country’s existing legislation should change as a result of ACTA (as specified by MED) – if not possible then it should be explicitly stated before submission what the impact on legislation will be
  5. Generic medicines should not considered counterfeit
  6. Penalty regimes should not be dictated and binding.

Table E:

Table F:

Clear demonstration by advocates of treaty to show the need – what is it aiming to deal with, what is the problem, does it address the problem

“Intellectual property rights? are not fundamental rights they are a protection of a monopoly – there needs to be a balance between the monopoly rights granted through IP and the rights of users and the public

As a treaty affecting people’s rights, public debate should be part of the process. Internet access is now a fundamental right

Scope should focus on counterfeit (or title should change to reflect content)
TPM should be beyond the scope of ACTA – if about enforcement of IP interests then access enforcement is nothing to do with copyright

Where is the statement of purpose:
-    ACTA is to ramp up enforcement of IPR, international mechanism

Why aren’t existing enforcement procedures and legislation sufficient

Why can’t this be done through existing multilateral arrangements – WIPO etc, rather than create a new structure which could take over from national judicial processes

Want assurance or statement from NZG that concession made under ACTA should not be traded for favourable terms in the FTA

Role of intermediaries – should not be placed in role of policing what goes over the Internet

Remedies:
-    Privacy needs to be safeguarded
-    Reasonable grounds to take action
-    Proportionate remedies
-    Judicial processes to protect rights and interests of all parties

How to rebalance ACTA
-    Recognition of fundamental rights – fair use, agreed exceptions
-    Focus scope on counterfeit and commercial piracy
-    Don’t use Internet intermediaries for enforcement – adds costs to users, breaks the Internet
-    Recognise need for local flexibility – differing regimes, penalties and philosophies

Table G:

Audience

- Public
- Politicians
- need to be ’shamed’ into being more directive to the negotiators

Preamble

- Need to affirm need to address decptiobe/counterfeit goods detrimental to consumers and destructive of industry
- Reforming copyirgjht law is policy issue
- needs wider engagement
- scope creep in ACTA provisions

Set of principles

- Right to access the internet is now a fundamental human right

- ACTA trade treaty process cannot redefine scope and extent of IP laws of sovreign nations

- ACTA has to represent a balanced approach to IP/copyright
- users as well as copyright holders
- Harmonisation of laws is useful but must also harminise the balancing aspects (Fair Use/Fair Dealing)
- Economic outcomes must not be the only metric used to assess the legality of activities under the Treaty – social, cultural and equity outcomes and impacts must be included

- Transparency
- public debate
- range of perspectives engaged in negotiation
- representation of multiple stakeholders
- accountability of positions taken by representatives of the Governments
- Need for much more specific language and consistency re copyright vs other IP

- Legal processes need to respect basic rights of the public – due process, innocent til proven guilty, guilt needs to be established by courts not by rights holders

- Trade laws should not serve as a means of entrenching existing monopolies and protecting industries from competition, nor provide preferential treatment for specific industries

- Free flow of information and expression
- intermediaries must be protected so they don’t restrict access out of fear of legal consequences “chilling effect”,
- right of crticism and comment must be absolutely protected
- secondary liability needs to be removed – lack of clarity about ‘inducement’
- Enforcement must be done by established legal agencies
- ‘Safe harbor’

- Needs be a clear and absolute between commercial and non-commercial activities meaningfully included in the treaty.
- Non-commercial infringement must not be criminalised
- damages need to be real and actual

- Privacy of communication and information
- need for warrants and legal oversight of monitoring
- identity information
- process for disclosing,
- notifying someone that they have been identified

Table H:

Broad, overarching points…

* Scope of ACTA:
- limit it to counterfeiting.
- do not deal with substantive IP provisions, deal with them in the
IP institutions

* Transparency of the negotiations:
- release of full draft text, and updating it after each round
- the trade agreement framework is convenient for negotiators, but
this should be like other IP treaties

* Open the negotiations to all interested states parties

* Focus on protecting the Internet as a place for innovation & the
free exchange of knowledge:
- no obvious justification for the approach of ACTA

* The need for evidence to justify any changes:
- must be independent evidence, not commissioned by those
participating in the debate
- what is the tradeoff for New Zealand given the current draft text
- what is the cost of taking the approach set out, and who will pay it?

If you are going to go ahead regardless…

* A set of global consumer protections / rights could be part of  the Treaty
- fair use
- global releases of content?
- privacy

* Any substantive provisions should be high level, flexible, and let
countries implement them appropriately (like other IP treaties)

* Limitations and Exceptions need to be incorporated:
- any substantive ACTA provisions should include the limitations and
exceptions in other IP treaties
- protect existing flexibilities

* Third Party liability needs to be excluded:
- broadest possible safe harbours
- common carrier / mere conduit justification
- clear, simple requirements to access: notice-notice, not graduated response

* Anti-circumvention of TPMs and copyright management information
- Language in ACTA should not deviate from language in the WIPO
Internet treaties.

* Treaty should be silent on disconnection or termination remedies:
disproportionate remedy that won’t work

* Don’t engage in institution building
- use the existing IP treaty institutions

Table I:

1.  Transparency.

Transparency and meaningful consultation with stakeholders during the negotiation process.

2.  What is the ACTA about?

Clearly identify the harm to be addressed.  Anti-counterfeiting – focus on that.
Do not address substantive policy.

Balance:
- the interests of copyright owners – incentivising creation
- the interests of the public and end users.  A Charter of rights and freedoms: access to knowledge, privacy, not being criminalised for regular activities.  Copyright exceptions.
- the interests of intermediaries – safe harbours and exceptions.

3.  IF substantive policy is addressed – and we believe it shouldnt be:

Flexibility for individual countries

Protect the interests of the public:
- exceptions, what is needed to adequate access to knowledge?
- safe harbours and limitations on liability for those facilitating access (intermediaries)
- preserving civil procedure and due process

All provisions tightly aligned with a clear statement of the harm being addressed.  That statement to be agreed by all stakeholders with regard to all interests, including of thep ublic and intermediaries.
Provisions should be clearly justified and proportionate.  Take into account impacts and burdens.

Preserve everyone’s ability to consistently and reliably have access to the Internet.

Encourage the growth of the digital env ironment.  Protect and empower digital innovators, including intermediaries.

No statutory damages.  Proportionate remedies.

Secondary liability – should not be mandated.  Allow flexibility for countries.

Safe harbours – clear protection from monetary remedies.  Allow notice and notice, not just notice and takedown.  Preserve internet access as above.  Clear standards for copyright notices.  Robust checks and balances.

Exceptions should be included.

TPMs – no change to existing international law.

No new institution

Table J:

Recognising that an IP agreement should be labelled as such and should be open, transparency is needed in the negotiation of any agreement that will require a change of laws amongst signatories.

Recognising that copyright is intended to provide a balance between protecting incentives for creativity and facilitating access to knowledge, public interest is served through achieving an appropriate balance between the two.

Recognising a basic right to connect, as the internet increasingly provides the link to political information and is a method of participation, internet connectivity must not be threatened with guilt by accusation, therefore, no new agreement should fundamentally decrease the burden of proof and disconnection should not be a punishment.

Recognising the enduring role of intermediaries in the efficient functioning of the internet, that, where they do not themselves determine content transmitted, stored, cached, or referenced by, on or through their services, they must not be subject to enforcement obligations designed to address third party IP infringement.

Table K:
Subversion of process

Possible to have closed negotiations that can affect criminal law. That should only be possible in an open forum. A loophole in democracy.

The treaty is a subversion of the law making process. This is an issue the public can relate to. But the public will care if they are directly affected. If you are explaining you are losing.

There should be minimum requirements involving transperency of what an international treaty process should be.

Proportionate response

The suggestions in ACTA are not proportional – e.g. statutory damages and termination for minor offences.

First the problem needs to be defined and then a proporationate response can be identified.

Unequal consequences

Risk for us is that we incorporate the enforcement measures but we don’t have the balancing rights we end up in a worse position than the US.

New Zealand shouldn’t agree to anything in ACTA that impacts usage of copyright material  compared to what citizens of the US can do both in terms of fair dealing and unregulated uses.

Encouraging content creation

Knowing what I can do and that reuse is valid in each country is valuable. This is something positive the agreement could contain.

DRM and regional coding

DRM’s do more harm than good. There are allowances for personal use in New Zealand albeit it is difficult without the technical savvy.

As an example content is relesaed in one market and if you can get it legally you are still restricted. We are a net importer of content. It doesn’t often get here in a timely fashion. We shouldn’t be supporting regional distribution models.

There is a potential solution to lost sales and that is simultaneous global release. The Internet is international.

If you don’t have recourse to the viable legal alternative on the Internet, whether because it is a new release or a orphan work for example, then the copyright holder should not be able to issue infringement notices.
Scope
Not just limit the scope but also endorse enforcement in respect to physical counterfeiting

Counterfeiting process can make goods inferior to what may be expected, creating safety and health issues. Secondly the physical counterfeiting of copyright works such as a DVD is about fair pricing distribution in certain countries and can be caused by pricing strategies of entertainment companies.

Limit ACTA’s scope but go further and endorse ACTA focusing on enforcements measures to prevent infringement of trademark and patents and copyrights in relatoin to physically manufactured goods excluding those that simply involve distribution of information media, for the reasons of public health and safety.

Intellectual property
Do not use the term but use copyright, trademarks and patents as appropriate. Even the word counterfeiting is not accurate word.

Third Party Liability

Keep in principled. Don’t get too prescriptive. Allow for potential in respect to where the law might be in the future. Take out the 3 strikes example and put in at least 5  examples that represent a variety of views or approaches.

Commercial vs Non-commercial

There are grey areas. When is the content commercial. For example private content can be posted on sites that make money from google ads.

There needs to be better explanation of commercial vs non-commercial and examples included about what it means.

Table L:

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PublicACTA Blog: April 10, 2010 at 2:07 pm, by Jordan

First Session – Summary

Nat Torkington, event host, has written the following notes summarising the discussion.

* ACTA needs a goal: is it limited to counterfeiting only?  Should it acknowledge that it’s creating Internet law and then attempt to make it wisely?

* Stakeholders: participation of users and intermediaries in the ACTA process.

* (c) is artificial property created to get a public good.  Must acknowledge that.  Perhaps also enshrine or strengthen the fair use rights that ensure that public good.

* claims it’s administrative only, but drafts will require substantial new law.

* damages may enshrine the flawed arithmetic of the music industry

* might enshrine intermediaries’ common carrier status: immunity from prosecution if they move all traffic without regard to content

* ‘non-commercial’ is problematic term, as even Creative Commons have found. It’s hard to pin down, and existing use of the term is undefined in ACTA.

* creating a new institution risks weakening existing institutions, is unnecessary, dangerous, and done clandestinely

* we might want to recommend that ACTA actually deal well with real counterfeiting issues

* preserve the local differences and flexibilities in copyright law, not harmonise away the underlying philosophical differences that reflect the character and choices of individual nations

When we return, we’ll consider those issues and any others groups come up with, to figure out which items we want to tackle as a whole group.

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PublicACTA Blog: April 10, 2010 at 9:23 am, by Jordan

What you’ll see on this site today

PublicACTA is now well under way.

You can follow the video with the link off to the right under the Twitter feed.

The programme is linked above. The most useful video to watch will be the plenary sessions and the keynote speakers – during the group discussions video will be of limited use.

Presentations from Michael Geist and Kimberlee Weatherall are available in PDF format here:

Michael Geist presentation here: presentation (.pdf, 865kb)

Kimberlee Weatherall presentation here: presentation (.pdf, 40kb)

Summary of the first plenary discussion (info sharing)

Key Issue Identification process (what the issues should be in the Declaration – very long notes)

Declaration Topics – the topics that the groups are now (3.50pm) preparing statements on.

The next post will be the Outline of Topics for the Declaration, which will then be populated as notes become available.

The final Declaration of Principles will be presented here as quickly as it can be, and you will be welcome to record your support in the comments section of that post.

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PublicACTA Blog: April 8, 2010 at 6:28 pm, by Will

ACTA: What Benefit to New Zealand?

[The post summarises an extensive report available here in PDF form: ACTA-what-benefit-to-NZ ]

ACTA – what benefit to New Zealand?

New Zealand is currently negotiating an Anti-Counterfeiting Trade Agreement (ACTA), with other countries including the United States, Canada, South Korea, the EU and Australia. The next round of negotiations is in Wellington on the 12th to the 16th of April, when we can expect to play host to over 100 trade negotiators from around the world.

This agreement is about more than just trade. It’s about extending the United States’ current model of enforcing intellectual property rights to every country that signs the agreement. The Ministry of Economic Development (MED) says that this is necessary for our economy, but they have provided no evidence to support this claim. The main outcome for New Zealand is likely to be people getting cut off from the Internet, with an erosion to their civil liberties and human rights.

MED has provided a document containing six core reasons for wanting to be part of ACTA. Here they are, with the reasons why they are wrong: Read more…

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PublicACTA Blog: April 8, 2010 at 2:22 pm, by Jordan

Issues for Saturday’s Discussion

This post summarises those key areas that our analysis points to as being the most likely topics that will come up at PublicACTA on Saturday.  It gives a bit of a flavour as to what the issue is, to get you thinking in advance of the meeting. Some sections ask questions, some sections provide background.

What problem is ACTA trying to solve?
ACTA was first established to deal with counterfeit goods, where there are obvious public safety issues (what if a drug you think is legitimate isn’t?) and economic concerns (people passing off high value merchandise that is counterfeit).  It has evolved into a Treaty dealing with online enforcement – well out of the realm of physical goods.  The underpinning assumption is that the Internet allows infringement of existing rights owned by copyright holders, and so those rights need to be more firmly enforced.

Some issues arise from this. Intellectual rights like copyright are designed in law to maximise the supply of these goods to the public – they are not designed to enrich the creators of content. Is there a lack of supply of copyright goods?  If there is, is tougher enforcement of existing rights the way to solve that problem? If that approach is taken, who would gain from it and who would be hurt? Are there other, better approaches to take? Read more…

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