ACTA - Time to Walk Away?

canada.com

David Gonczol, Ottawa Citizen

Here's Jamie Love in the Huffington Post on the ACTA leaks story broken by Michael Geist.

Here's The Atlantic.

Here's the New Zealand Herald.

This is going into the main stream.

If all or indeed any substantial portion of the rumours about ACTA (three strikes +, DMCA +, WIPO+, border searches of iPods, cell phone etc, for MP3s, etc.) are true, and if Canada goes along with this "agreement", then Canada will forfeit its sovereignly to determine its own IP policy. For starters, this summer's mammoth copyright consulation will have been for nothing.

So if there is substantial truth to these rumours, then Canada needs to seriously consider walking away from this secret treaty/agreement process. Maybe sooner rather than later.

We know that there is unprecedented secrecy over this process. Neither the WTO nor WIPO ever worked this way. There is no reason or justification for this. Absolutely none other than industry induced secrecy. You can be sure that the RIAA and MPAA know exactly what is going on here.

We know that Canada has very limited ability to influence the Americans. As Trudeau said, when a mouse gets in bed with an elephant, it is the mouse that needs to worry about being rolled over.

Canada has long since lost much if not most of its honest broker status in international IP and other diplomatic circles. We likely don't have the clout any more to stand up to the Americans in a negotiating room or to broker some more moderate IP arrangement. If we really think we can do that, maybe we should remain at the ACTA table for a while. But if we can't, maybe we should just walk away. And maybe sooner rather than later.

Walking away could preserve Canadian sovereignty to do what is best for Canada, which is what we really ought to care about. It might help Canada to regain international credibility and bargaining strength.

From what we have seen in the leaks to date, there is really nothing in the proposed ACTA that would benefit Canada. We do not have a serious piracy or counterfeiting problem here unless one believes the recycled and circular back-of-the-envelope “evidence” from the usual lobbyists. One has to look very hard to find fake Rolexes or pirate CDs or DVDs in Canada. I have frankly never seen this stuff in Canada. Compare mid-town Manhattan where these things are “in your face.” Claims about counterfeit medicines and health and safety issues, etc. are a smokescreen for the real agenda here, which is an ultra strong copyright and trade-marks regime, with huge “ex officio” powers given to border guards, who will be informed and educated by industry “experts.” Such ex officio action has recently resulted, for example,. in scandalous delays of perfectly legal generic AIDS drugs en route through The Netherlands to developing countries. In any case, one does not need ACTA to deal with any issues involving fake medicines or counterfeit Christmas tree decorations.

People don’t like surprise attacks on their civil liberties - and ACTA could be a very big surprise indeed, resulting in cut-offs of internet service and warrantless searches of electronic devices at the border for copyright infringement - i.e. downloaded songs and movies.

Anyone who doesn't believe that the US is serious about this should look at a recent bulletin dated August 20, 2009 from U.S. CUSTOMS AND BORDER PROTECTION CBP DIRECTIVE NO. 3340-049 which begins as follows:

PURPOSE. To provide guidance and standard operating procedures for searching, reviewing, retaining, and sharing information contained in computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players, and any other electronic or digital devices, encountered by U.S. Customs and Border Protection (CBP) at the border, both inbound and outbound, to ensure compliance with customs, immigration, and other laws that CBP is authorized to enforce.

These searches are part of CBP's long-standing practice and are essential to enforcing the law at the U.S. border. Searches of electronic devices help detect evidence relating to terrorism and other national security matters, human and bulk cash smuggling, contraband, and child pornography. They can also reveal information about financial and commercial crimes, such as those relating to copyright, trademark and export control violations. Finally, searches at the border are often integral to a determination of admissibility under the immigration laws

(emphasis added)

And this is BEFORE ACTA. This US will expect this and more from other ACTA partners.

That's right. Copyright “violations” (whatever that may mean) are right up there with terrorism and child pornography. Take no comfort in promises of a “de minimis” exception policy. First of all, I'm sure that RIAA and MPAA and their Canadian branches, CRIA and CMPDA, will lobby hard to make sure that “de minimis” means some truly low number such as five or ten MP3 files or one or two movies for which the traveller can't prove “ownership” on the spot. And do we really want border guards detaining us for hours and our devices for up to days, weeks or months while they determine whether we are “de minimis” or not? And what about songs that we have legally ripped to our iPods, according to the RIAA and CRIA. from CDs that we have bought and paid for? What if the customs agent doesn't believe that we own the CDs? And don't bring any children with you on your travels. (Unless you want to leave them in the care of border officials!)

They are notorious “pirates.”

If Canada remains in this negotiation in order to try to moderate the extremists, the minimum price for so doing should be complete transparency and immediate publication of all draft texts, as has been the normal practice at the GATT, WTO, WIPO and elsewhere for decades. That is the only way that moderation can hope to be achieved. And we should still be prepared to walk away.

HK

PS - November 6, 2009: This is front page news in today's Ottawa Citizen.

L’Oréal and parallel imports

Anyone who seriously does not think that attempts will not be made to use ACTA to get at parallel imports should look at the recent UK decision involving L'Oreal and eBay, which is almost 500 paragraphs in length and in the end refers several questions to the ECJ. The case concerns both counterfeits and parallel imports. While the judgment confirms that "a trade mark owner cannot request border control measures in respect of parallel imports" in the EU, it does show that major trade-mark owners regard both parallel imports and counterfeits as illegal and will what they can to stop both. It would be natural for the EU to "policy launder" though ACTA a change in its own law. Policy laundering is arranging for policy that is too controversial to legislate domestically being adopted in a treaty or agreement that "must" be implemented domestically.

Here's the decision from Justice Arnold of the UK High Court and some preliminary commentary from my friends at the IP Kat and IPWars.

HK

Bordering on Fiction

It’s interesting that the new U.S. Homeland Security Secretary, Janet Napolitano, believes that terrorists have routinely entered the United Sates through Canada — including the perpetrators of the 9/11 attacks. If such ill-informed, clearly harmful and inaccurate myths are really believed by high American officials, the resulting US Government demands could seriously impair ease of travel and increase shipping costs and inconvenience for Canadian businesses. Such measures could render cross border trade uncompetitive in some cases. So much for free trade. Could this all possibly be a disingenuous excuse for more protectionism? Trade lawyers would be shocked, shocked if such were the case.

Speaking of never letting a crisis (whether real or concocted) go to waste, it was apparent at last week's Fordham conference held at Cambridge, England that American USTR and Department of Commerce (USPTO) officials are similarly ill informed about piracy, counterfeiting and Canadian border and IP issues in general. This has clearly driven the USA ACTA and “Special 301" agendas.

The American officials actually do seem to believe that Canada is a major gateway for transhipping fake goods to the USA and that fake goods are actually made here in Canada in quantity. But where is the evidence for this? It seems that a key source of these allegations about Canada is that of Canadian based lobbyists for American content owner interests.

Don't be surprised if, based upon such “evidence”, Canada is promoted to the worst of the worst list on this year's “Special 301" report, expected any day now. Clearly, the Canadian lobbyists who act for their American bosses and profess to be interested in the cause of Canadian artists are getting a lot of traction. Even US Vice President Joe Biden now has Canada in his sights, along with China:

Biden blasted China, saying its intellectual property laws remain "largely ineffective" and will end up "strangling their own creative juices," and compared it to what he described as India's more effective anti-piracy regime. He singled out Canada, a close U.S. ally, as needing stronger laws; it never signed the treaty that led to the Digital Millennium Copyright Act, and a proposal to adopt anti-circumvention restrictions was never adopted.

I'd like to think that our Canadian government is doing its best to inform the US Government of facts, rather than passively letting special interest lobbyists feed unfettered fiction into the American policy making machine.

The fact is that Canada has long had in place very effective border enforcement mechanisms that operate under the jurisdiction of the courts, as they should. “Ex officio” measures that would empower Canadian border officials to decide matters on their own that should be left to the judicial process are not needed or even desirable in Canada. As I've pointed out before, Justice Roger Hughes, who has extraordinary experience as both a Canadian IP litigator and now as a Federal Court Judge, provided an important comment last year at Fordham that takes the wind out of the sails of those who advocate "ex officio" actions at Canadian borders:

Justice Roger Hughes of the Canadian Federal Court commented from the audience in response to Steve Metalitz’s suggestion that Canada lacks adequate and effective border measures and should provide “ex officio” seizures (i.e. seizures that bypass the Courts and let customs officials seize allegedly pirated or counterfeit goods). According to Mr. Metalitz, the current system doesn’t work. Justice Hughes pointed out that this was simply wrong and that judicial orders for seizures were readily available when appropriate – and that those seeking such a change should “stop whining” and just “roll up their sleeves” in order to use the current system. He indicated that he had signed three such orders at the request of Microsoft just in the last week.

The fact is that counterfeit and pirated products are not freely and openly available on the main streets of major Canadian cities, as they are in New York City, for example. Why blame Canada for a problem that the USA cannot or will not address even in mid-town Manhattan?

As to piracy and counterfeiting in general, the late Sir Hugh Laddie told The Times in a story on June 3, 2008 a few months before his death last year:

"Of course there is counterfeiting in China, but the same goes on in the US and Europe. Pro rata, the biggest source of pirated computer software in the world in the US.”

It’s time for facts about piracy, counterfeiting and what happens at borders. We need to move beyond lobbyists’ fabrications bordering on fiction.

HK

PS:

BTW, if anyone wishes to pay $1,595 for a one day program (which includes lunch) to attend what promises to be an enthusiastic presentation of American government and American content owners’ points of view voiced directly and through Canadian lobbyists on some of the above topics, the Conference Board of Canada is hosting just such an event on May 29, 2009 in Toronto. Here’s the program.

"ACTA" - a New Plurilateral Policy Platform

A potentially important announcement from Washington, Brussels (EU), and Ottawa (and doubtless elsewhere) today re a proposed Anti-Counterfeiting Trade Agreement - “ACTA.”

According to US Ambassador Schwab:

The ACTA would complement the Administration’s work to encourage other countries to meet the enforcement standards of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) under the World Trade Organization, and to comply with other international IPR agreements. It will not involve any changes to the TRIPS Agreement. Rather, the goal is to set a new, higher benchmark for enforcement that countries can join on a voluntary basis. The negotiations represent a cooperative effort by the governments involved, and will not be conducted as part of any international organization.

The list of currently interested countries read a bit like preaching to the choir:

[US] Trading partners engaged in discussions so far include Canada, the European Union (with its 27 Member States), Japan, Korea, Mexico, New Zealand, and Switzerland.

Most of these countries have adequate and effective levels of substantive law and enforcement mechanisms.

So - these questions arise:

• What’s this really about?
• Will the US “insist” on ratcheting up substantive law - for example by defining downloading, “making available” and DRM/TPM circumvention as “piracy”?
• Will the US and EU insist that all countries have a common copyright term - for the sake of better and more symmetrical “enforcement”?
• Will legitimate parallel imports get caught, like dolphins in a drift net?
• Where are WIPO and WTO in this?
• Is this an exercise in plurilateral policy laundering?

There is clearly potential for positive developments here. Indeed, counterfeiting involving trade-marks is morally, economically and even criminally wrong - especially in the thankfully rare cases when health and safety are involved. Commercial scale copyright piracy is also quite wrong - although certain elements in the record industry apply the word “piracy” rather promiscuously to include all manner of private copying that they cannot control - thereby labelling hundreds of millions of ordinary internet users as “pirates.”

But some rights owner lobbyists and sympathetic officials have a tendency to conflate “effective action” on enforcement issues with substantive law augmentation. We saw an example of this in the Grokster case in the US Supreme Court, and I was asked to write an “amicus” brief on it.

What we don’t want to see are excessive barriers to the flow of legitimate goods, including parallel imports - which are legitimate by definition. There is a danger that customs officers and even lawyers won’t be sure of the difference in some cases. If that happens, millions of dollars of legitimate goods may get tied up or cost more to clear at a border. And we don’t want to see a backdoor mechanism to increase substantive laws in ways that threaten Canadian cultural and economic sovereignty.

And we don’t want to see a good cause become the pretext for bad laws. Think 9/11. The Bush administration has tried to brand many critics of its excessive post 9/11 incursions on civil liberties as soft on terrorism. And we have seen the results ranging from common inconvenience at the boarder to tragedy. Will critics of potentially excessive ACTA measures be labelled as proponents of counterfeiting and piracy, and enemies of artists and creators?

There are also the dangers of a plurilateral policy platform dominated by the US and to a lesser extent the EU - especially since the often too low but at least established minimal institutional transparency of WTO and WIPO won’t be there. We may get a fait accompli that Parliament will be asked - or told - to implement. Or some would say “rubber stamp.” That’s how policy laundering happens - things that couldn’t get of the ground domestically are agreed upon far away by a few senior bureaucrats and politicians - and are brought home effectively as domestic law. All democratic countries should be worried about this.

BTW, here's a rather balanced British view from one of my favourite felines, the IPKat.

And here's a take from IP-Watch on the formidable forces pushing this initiative including Mary Bono - who famously told Congress that:

Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. … As you know, there is also [Motion Picture Association of America president] Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.

This may provide a clue as to where these talks may be headed...

Update: Here's Minister David Emerson jumping on the bandwagon.

HK