Softwarepatenten.be

Dr. Claus Ulmer of Deutsche Telekom on the European Data Protection Reform projet:

However, the text of the regulation still has to be adapted to the extent that multinational corporations with numerous legal units are also clearly covered by the regulation and can therefore profit from it.

At first sight it’s spin for data protection. The sort of expressions you hope these persons don’t take home from work, and it gets you pleased as a punch. Anyway, what seems to contradict the lobbying from Us corporations in Brussels against data protection makes sense from the perspective of Deutsche Telekom. Deutsche Telekom is satisfied with the current data protection regime under German law and as a multinational corporation appreciates equivalent uniform rules for Europe, refutes self-regulation as a too lenghty process, embarks into a simple one-stop-shop approach. Interesting interview.

Ambassador Philip Verveer addresses internet governance and casts water on European cloud privacy concerns.

W3C Encrypted Media Extensions “…allows JavaScript to select content protection mechanisms, control license/key exchange, and implement custom license management algorithms. It supports a wide range of use cases without requiring client-side modifications in each user agent for each use case. This also enables content providers to develop a single application solution for all devices.”

ITU is the new multistakeholder? From an analysis of Alexander Klimburg on the ITU WCIT summit for a ITRs revision:

According to noted Internet governance scholar Wolfgang Kleinwächter, the language in the new ITRs could actually imply the creation of a “new” multistakeholder system for Internet governance, one that ultimately replaces the existing system with something working under the aegis and ultimate control of the ITU.

There are quite a few academics that tried to transform the ITU into a multi-stakeholder governance mechanism. But the reformist approach overlooks in the difficulties of a world organisation as the ITU. The article of Klimburg compares a clash between “Cybersovereignty” and “Multistakeholder” at the WCIT to the Yalta meeting.

The article of Klimburg overlooks that ITU-T is a multistakeholder organisation and European players embark on a cybersovereignty approach, simply because the multistakeholderism of the US does not give them a fair share, still they cannot support an expansion of power for ITU world governance: In a world with more than 200 nations “world governance” leads to hypocrite political corruption, nurtures a political class that at best trickles down the “capacity building and technical assistance” in their nation. There is simply no reason why leading industrial nations would want to let questionable regimes of nations with an irrelevant internet share meddle with the governance of the internet. And also you hardly discover good reason why the expensive closed-shop ITU-T multistakeholderism or the IGF would seem qualified. The US excitement for flat multistakeholder governance was build on an engineer perspective of the kind “railways to the railway people” along libertarian scepticism against the US government capabilities to get it right. The ITU-T exemplifies a more static industrial multistakeholderism that does not suit the internet.

Statement by more than 70 organizations: “We urge the EU and Canadian governments to follow the lead of the Australian government by stopping the practice of including investor-state dispute settlement in their trade and investment agreements, and to open the door to a broad re-writing of trade and investment policy to balance out corporate interests against the greater public interest.”

See the full statement: Transatlantic Statement Opposing Excessive Corporate Rights (Investor-State Dispute Settlement) in the EU-Canada Comprehensive Economic and Trade Agreement (CETA)

Today EU trade commissioner Karel de Gucht travels to Washington to discuss the possibilities to start negotiations on an EU – US trade agreement. Some companies already dream of setting a gold standard in areas such as intellectual property rights (IPR) protection. That sounds like ACTA, the agreement overwhelmingly voted down last July in the European Parliament. Will ACTA return, should IPR be part of a Trans Atlantic “Free Trade” Agreement (TAFTA)? Opinions go from in, out or optional. The right answer is out, as with an IPR chapter, the EU and US will violate their human rights obligations.

IPR in or out?

The June 2012 interim report of the EU-U.S. High Level Working Group on Jobs and Growth said about inclusion of IPR in an EU – US trade agreement: “Both sides agree that it would not be feasible in negotiations to seek to reconcile across the board differences in the IPR obligations that each typically includes in its comprehensive trade agreements.” (pdf)

The EU and US then held consultations, Infojustice lists some reactions regarding IPR. The National Association of Manufacturers, National Foreign Trade Council and a Joint comment by the Pharmaceutical manufacturers and Research Association, and the European Federation of Pharmaceutical Industries and Associations are in favor of including IPR in the trade agreement. The European Generic Medicines Association and the the (US) Generic Pharmaceutical Association recommend keeping IPR out of the trade agreement.

In its submission, the National Foreign Trade Council mentions “a comprehensive agreement or set of agreements”. A set of agreements would be the right approach, as one yes or no vote on a monolithic trade agreement does not seem compatible with democracy.

An optional IPR chapter?

Intellectual Property Watch yesterday reported the possibility that an IPR chapter could be made optional: “Being part of a larger, comprehensive package, special provisions in the IP chapter might not be made a make-or-break issue for a TAFTA, unlike in the debates about the Anti-Counterfeiting Trade Agreement.”

That, at first sight, may look reasonable. But it is important to remember what Michael Geist wrote in his report on ACTA for the European Parliament International Trade committee: “In an attempt to resolve ongoing conflicts over several substantive areas, the ACTA negotiators agreed to make many provisions permissive rather than mandatory. Supporters frequently point to the non-mandatory nature of several contentious provisions as evidence that there is little reason for concern with the substantive elements of ACTA. The permissive approach may be a useful mechanism to achieve consensus, but it provides cold comfort to those concerned with the long-term implications of the agreement. The experience with other treaties indicates that flexible, permissive language is gradually transformed into mandatory, best-practice language.” (pdf)

IPR out

Access to knowledge and culture is a human right. As Peter Yu wrote earlier, it is imperative that countries strike a more appropriate balance between the protection and enforcement of intellectual property rights and the commitments made in international or regional human rights instruments.

An optional IPR chapter will point in the wrong direction. All countries have an obligation to respect, protect and fulfil human rights, and must desist from acts and omissions that create a real risk of nullifying or impairing these rights. All countries are obliged to create an enabling environment conducive to the universal fulfilment of human rights. (See the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights, pdf)

With an IPR chapter, the EU and US will violate their human rights obligations.

Earlier posts:
The era of monolithic trade agreements is over?
EU – US trade agreement will give a boost to expropriation trolls

Tomorrow EU trade commissioner Karel de Gucht will travel to Washington to discuss the possibilities to start negotiations on an EU – US trade agreement. The industry already dreams of setting a gold standard in areas such as intellectual property protection – just like they tried with ACTA. But that is not all. An EU – US trade agreement will also give a boost to expropriation trolls, the more evil kid brothers of patent and copyright trolls. Expropriation trolls abuse arbitration tribunals to attack legislative reforms and demand high damages.

Investor – state arbitration

The Interim Report to Leaders from the Co-Chairs EU-U.S. High Level Working Group on Jobs and Growth, 19 June 2012, (pdf) writes about a possible investment chapter: “The aim would be to negotiate investment liberalisation and protection provisions on the basis of the highest levels of liberalisation and protection that both sides have negotiated to date.”

The High Level Working Group refers to investor – state arbitration, which gives multinational companies the right to directly sue states in international tribunals. Adding investor – state arbitration to an EU – US agreement is not necessary, but detrimental.

Not necessary: Both the EU and US have excellent laws providing protection against expropriation. Both the EU and US have good court systems and highly respected high courts. We are not banana republics. There is no need for protection against expropriation in a trade agreement between the EU and US.

Detrimental: Arbitration tribunals are placed above the high courts. There is almost no possibility for appeal. In recent years, arbitration tribunals increasingly stretched the concept of expropriation. Multinationals claim that reforms of legislation that could reduce their profits are expropriation and demand high damages. Arbitration tribunals award such damages. Basically, investor – state arbitration is hijacked by a captive incrowd.

Public Citizen’s Lori Wallach wrote a two part overview (part I, part II) of investor – state arbitration in the TPP agreement, which is also an excellent general overview. See also the FFII press release on the EU – Canada trade agreement.

Assault on democracy

Faced with the negative consequences of investor – state arbitration, Australia decided not to sign treaties containing such clauses any more. The High Level Working Group disregards recent developments, its advice is flawed and dangerous.

Patent and copyright trolls are legal entities that use bogus law suits to extort money. They use flaws in legislation, legislation that can still be repaired. Expropriation trolls use arbitration tribunals to attack legislative reforms and protect old business models. With investor – state arbitration we undermine democracy and risk making trolling perpetual.

Yesterday: The era of monolithic trade agreements is over?
Tomorrow: A new ACTA?

Tuesday EU trade commissioner Karel de Gucht will travel to Washington to discuss the possibilities to start negotiations on an EU – US trade agreement. The industry already dreams of setting a gold standard in areas such as intellectual property protection. Does that sound familiar? Yes, it does. It sounds like ACTA, the agreement overwhelmingly voted down last July in the European Parliament.

ACTA was, in almost all aspects, a drama, out of touch with our societies. In a series of posts on this blog, I will give some thoughts on how to do things better. Today: the era of monolithic trade agreements is over?

Rewriting our laws in secrecy

On average, the trade tariffs between the EU and the US are already low (under 3%). To enlarge trade, progress will have to come from the tackling of non-tariff barriers. The EU commission calls them behind the border regulatory restrictions. Such behind the border regulatory restrictions are, in plain words, our laws. We will have to rewrite our laws to enlarge trade with the US.

There will be tough choices to make. As Reuters explains, a “trade deal could be a lot for Europe to swallow”: “Can Europeans, who have balked for years at many U.S. food imports, accept a free trade agreement with the United States that opens the door for imports of genetically modified crops and chickens cleaned with chlorine?” See also Glyn Moody, After ACTA: Trans-Atlantic Partnership Agreement.

The point I want to make here, is that the trade negotiators will discuss changing our laws behind closed doors. Only company lobbyists and some members of parliaments will have access to the negotiation texts. The outcome will be one big package, say 1000 pages, to be voted in one vote, yes or no. The EU is in a dire state, the commission desperately wants a success. The pressure on the European Parliament to vote yes will be huge. What will happen will not be a feast of democracy.

A deep integration of our laws, negotiated in secrecy, with only access to some, voted in once, is not compatible with democracy – even if the final vote is an open parliamentary vote.

We can do better. On some issues, the EU and US will be able to reach agreement rather easily. There is no need for secrecy here. Negotiate and conclude a light agreement. This can be done without delay.

On other issues, agreement will be much harder to reach. As these are sensitive issues, secrecy is unacceptable here. The negotiators will have to discuss these issues in the open. They can then present them to parliaments in the smallest possible balanced chunks. This will provide a much higher legitimacy. The Lisbon Treaty makes this possible. Democracy necessitates that the era of monolithic trade agreements is over.

Tomorrow, the second blog, on expropriation trolls.