EU-Kommission: Hat sich um Transparenz bei ACTA (nicht) bemüht

Langsam kommt mehr Licht in die ACTA-Verhandlungen und die EU-Kommission kommt dabei nicht gut weg. European Digital Rights hat von vier ACTA-Verhandlungsrunden die Protokolle der EU-Kommission zugespielt bekommen und veröffentlicht. Die Dokumente geben etwas Einblick in die Verhandlungen und vor allem die Verhandlungserfolge der EU-Kommission – letztere sind eher spärlich. Durchgesetzt haben sich meist die US-Partner. Das macht sich z.B. beim Punkt „mehr Transparenz“ bemerkbar. Während sich die EU-Kommission für die „größtmögliche Transparenz“ rühmt und damit die Selbstverständlichkeit meint, dass der abzustimmende Endtext auch von Bürgern und Abgeordneten im Netz gelesen werden kann, waren die Verhandlungen für US-Lobbys transparenter. Diese erhielten Zugang zu den aktuellen Verhandlungsversionen, EU-Bürger und -Unternehmen konnten diese Versionen nur bei Wikileaks lesen, wenn diese denn dorthin geleakt wurden. Aus den Dokumenten geht aber auch hervor, dass sich die EU-Kommission nicht wirklich um Transparenz bemüht hat.

Meeting notes Paris 2008
Meeting notes Rabat 2009
Meeting notes Seoul 2009
Meeting notes Guadalajara 2010

Jetzt aktiv werden gegen ACTA!

Und hier ist die englischsprachige Pressemitteilung von EDRi, die die Dokumente ausführlich erklärt:

1. The Commission claims that the ACTA process was transparent. The documents show this to be false.

From the earliest stages, the Commission made weak and unsuccessful efforts to have a transparent process.# Despite support from Switzerland, Australia, New Zealand and Canada, the EU was unable to gain any meaningful concessions. The EU ultimately agreed to work to keep all versions away from the public.

The Commission also shows itself to have been completely out-manoeuvred by the United States. Not alone did it fail to negotiate any meanings concession, it haplessly points# out in several of the documents that the agreement on confidentiality that it accepted created a huge advantage for the US. Specifically, it permitted the US to show ACTA documents to “selected stakeholders” under non-disclosure agreements while the EU had no equivalent mechanism, thereby giving a big advantage to the stakeholders selected by the US authorities.

2. Failures of transparency extended to the Council Presidency

In the notes from the Seoul meeting, the Commission reports that the Swedish Presidency of the European Council proposed not giving an oral debriefing to the Member States, with the explicit intention of preventing Italy and the United Kingdom from raising concerns about penal sanctions for online infringements. The notes from the Commission indicate shock at this level of undemocratic behaviour, saying that “Sweden even proposed not having an oral debriefing…to avoid giving IT and UK the chance to raise the matter”.#

3. The proposal on “three strikes” was not universally rejected, as the Commission has claimed

The European Commission initially claimed# that no proposal on “three strikes” (disconnection of users on the basis of accusations of infringements) had ever been made in the context of the ACTA discussions. Subsequently, when evidence of this assertion being false became public#, the European Commission accepted that the proposal had been made but that it had been flatly rejected because “most” of the negotiating partners rejected it. There is no obvious trace of such a rejection in the notes from the meetings – the Commission itself comments that this issue is “subject to debate” in some Member States.# In a second comment it, points not to objections to disconnection but to these disconnections being a precondition for ISP liability protections.#

The notes also directly contradict statements by Commissioner De Gucht. In March 2012#, he claimed that ACTA “will not subcontract the functions of the police to private internet service providers”. The fact that the proposals call for “enforcement by ISPs” is explicitly acknowledged in the notes. The Commission’s only reservation was that “such an enforcement policy by ISPs should not lead to a general obligation to monitor the information that they transmit or store”.#

Instead, under ACTA, the ISPs would have to decide (faced with the threat of criminal sanctions if they derive „indirect“ economic benefit# from infringement and the threat of virtually unlimited damages payments#) and under pressure from governments obliged by ACTA to promote privatised policing, they want to voluntarily police the Internet and “voluntarily” monitor information they transmit or store and take sanctions against their customers.

4. The Commission does not believe its own argument that ACTA changes nothing in EU law

In the US, companies and citizens avail of a copyright exception that allows use of copyrighted material without the explicit permission of the rightsholder, as long as this is considered a “fair use”. This permits, for example, the use of copyrighted material for parody, the use of short video clips for illustrative purposes, copying of data by search engines to permit indexing and so on. Private copying by citizens is also a copyright exception.

One of the biggest competitive disadvantages created by the EU’s regulatory framework is the fact that the regulation of such exceptions and limitations of copyright is dizzyingly complex. This makes it virtually impossible in Europe to set up a search engine, a video-sharing website or any business that relies on copyright exceptions and limitations. This creates a significant competitive disadvantage for EU businesses compared with those based in the USA.

ACTA contains an extremely broad protection of technologies which would prevent, for example, the copying of a legally obtained file. This clearly makes a nonsense of laws which give users the right to make private copies – it is little use having the right to make a private copy if legally protected technology is installed to stop the copy from being made. The Commission explicitly recognised this danger, arguing in its notes that there is “no apparent possibility to safeguard exceptions to copyright/related rights in case of protection against circumvention”.# This change in the legal framework was explicitly criticised by Canada, New Zealand and Switzerland because this would be, in the Commission’s words, this “an issue of substantive law and not enforcement”.# This note shows that the European Commission is fully aware of the fact that it is not telling the truth when it says that ACTA is only about enforcement and not about substantive law.#

Unfortunately, however, at least a year before any revision of the 2001 Directive which created Europe’s chaotic exceptions and limitations regime, the EU agreed to legal protection of technical protection measures in ACTA removing, in its own words, the “possibility to safeguard” flexibilities provided for in EU law.

Rather pathetically, having described why the legal protection of restrictive (and usually proprietary) technologies will undermine usage rights of legally obtained content, the Commission closes that the EU’s position is to support “compatibility and interoperability between devices”.#

5 – The Digital chapter: From US incoherence to European vagueness

The documents provide an interesting insight into the development of the digital chapter. It starts with US proposals for far-reaching requirements and occasionally incomprehensible demands with regard to, for example, liability provisions being contingent on disconnecting end-users accused of infringements and finishing with a text which is open to interpretation in line with the original demands but without being as overtly offensive. The original text was so incomprehensible that the Commission notes proudly that the other negotiation partners asked the EU to try to make them make sense.#

For example, the final text of ACTA is clear about the intention to encourage enforcement by Internet providers but it whether this should be a requirement for protection from liability is not addressed. ACTA only specifies that liability protections are possible under ACTA, if the interests of rightsholders are not unduly impacted.

The European Commission’s support for “self-regulatory” enforcement of copyright law by Internet providers is in direct contradiction to the Commission’s obligations under the 2001 Interinstitutional Agreement between the Commission, Council and Parliament. That legally binding agreement explicitly bans (in Article 17) the Commission from using self-regulatory tools where fundamental rights are at stake.#

6 – The EU could not even make an impact with its good proposals

The European Commission proposed paying particular attention to health and safety concerns in international cooperation provisions.# This shows an awareness of the need (completely ignored in the final ACTA text) to prioritise infringements which endanger human health, rather than treating downloaded music files with the same degree of importance as counterfeit medicines.

The European Commission also proposed measures to protect the environment when counterfeit goods are destroyed, following seizure under ACTA measures. This too was ignored, with a typically vague and meaningless ACTA safeguard# that the laws of the country where the destruction takes place must be respected.

7 – The comprehensive failure of the Commission negotiators is highlighted time and time again

The European Commission has always avoided addressing the widespread criticisms of the lack of clarity of many of ACTA’s provisions. The Commission’s notes show us how acutely aware they are of the problem. In Seoul, the Commission negotiators tried to push for improvements of the agreement by asking for clarifications on a number of definitions such as “digital environment” and “online service provider”#. In yet another failure to exert enough leverage, these definitions did not find their way into the current text. As we know, the vague definitions are one of the many fatal shortcomings of ACTA.

The comprehensive failure of the European negotiators is concerning for a number of reasons, and begs the question of what kind of influence the EU would have in the unelected ACTA Committee if the Treaty passed and was implemented. It also underlines the fact that this agreement, from beginning to end, was driven by the United States — the documents were drafted in the image of US copyright law, do not include particular aspects of IP that are considered important to the European economy, such as Geographical Indicators (described as being “of great importance” by Commissioner De Gucht#), and even on such seemingly trivial aspects, like defining what is meant by “digital environment” could not be achieved by the European representations. How can Commissioner de Gucht continue to assert that ACTA is good for the European economy if it failed consistently to make any positive gains for itself throughout the entire negotiation process?