German Parliament questions on TTIP

Thanks to the tool Offenesparlament.de you can find what questions are asked by Members of the German Bundestag (MdB) concerning the Transatlantic Trade and Investment Partnership to the German government.

For instance the Government stipulates that sectoral exclusions are impossible because of WTO principles (Dr. Maria Flachsbarth, Parl. Staatssekretärin beim Bundesminister für Ernährung und Landwirtschaft):

Dennoch ist es aus der Sicht meines Hauses aufgrund von WTO-Bestimmungen ausgeschlossen, einen gesamten Bereich wie zum Beispiel den Agrarsektor aus diesem Verfahren bzw. aus den Verhandlungen zum TTIP auszunehmen.

It needs further analysis why and how bilateral negotiations are governed by WTO trade principles.

Bundesregierung setzt sich für ein umfassendes Abkommen unter Einschluss des Agrarsektors ein. Dies ergibt sich schon aus WTO-rechtlichen Vorgaben und ist darüber hinaus auch im Interesse der deutschen Agrar- und Ernährungswirtschaft, für die freier Handel neue Exportchancen sowie Zugang zu benötigten Rohstoffen eröffnet. Die Wahrung der europäischen Lebensmittelstandards steht dazu nicht im Widerspruch. Auch die USA haben in gleicher Weise ein Interesse an freiem Handel bei Wahrung ihrer eigenen Lebensmittelstandards.

The government says it is unaware about TTIP impact on national patent laws (Brigitte Zypries,
Parl. Staatssekretärin beim Bundesminister für Wirtschaft und Energie):

Über die Auswirkungen von TTIP auf Patentrecht oder gar auf Änderungen des Patentrechts liegen der Bundesregierung keinerlei Informationen vor

The German government also expects no lowering effects on work and social standards:

Die Bundesregierung sieht kein Risiko einer Absenkung von Arbeits- und Sozialstandards durch die TTIP-
Verhandlungen.

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European Commission prepares to surrender our privacy

In my previous post I wrote that in the US – EU trade negotiations (TTIP / TAFTA) the US tabled a proposal that will undermine our privacy. I asked the EU chief negotiator a question about this. He did not acknowledge the issue, so he keeps open the option to surrender our privacy.

Negotiations

Last week the 4th round of US – EU trade negotiations (TTIP) took place. On Wednesday chief negotiators Dan Mullaney (US) and Ignacio Garcia Bercero (EU) gave a briefing to stakeholders.

A few hours earlier the European Parliament adopted its version of the EU privacy law reform and adopted a resolution calling for suspension of flows of personal data to the US.

These two votes show the problem with privacy. The EU has stronger privacy protection than the US, but once our personal data leaves the EU, the protection falls away. To protect our privacy, it is essential to have the power to suspend cross border flows of personal data, as it can force US companies to respect our privacy. As explained earlier, in the TTIP negotiations the US tabled a proposal that will undermine our power to suspend cross border flows of personal data.

Suspension of flows of personal data

At the stakeholders briefing, I asked the negotiators a question regarding suspension of data flows.

“I have a question on privacy, on personal data. This afternoon the European Parliament adopted a resolution which calls for the suspension of flows of personal data to the United States. This is a very strong instrument because it is the only way to make US companies comply with good privacy rules. The US tabled a proposal which would outlaw such suspension of data flows. There is a direct conflict with the European Parliament position, what is the comment of the negotiators on this?”

Reassuring words

Garcia Bercero said that the commission has taken a very clear position throughout this discussion which is that they are not going to be negotiating in this context issues relating to data privacy. The commission is ready to talk about issues relating to data flows but it is very clear that any substance relating to data flows has to be in accordance with European legislation on data privacy, present or future.

Mullaney talked about the importance of data flows, said that the ability to transfer data is in a way the backbone of the US – EU relationship and that the US thinks that the agreement can and should address data flows, it should facilitate this backbone, and they are confident that as they move forward that they are able to put in place provisions that facilitate flows of data in a way that respect the privacy on both sides.

Reassuring words?

Reassuring words. What are they worth?

First, the US track record on privacy is terrible. In the TTIP negotiations US companies and members of Congress want to ensure that all types of businesses can transfer data without problems. The US tabled a proposal that will undermine our privacy.

Second, the EU track record on cross border flows of personal data is weak. The commission is fine with the flows to the US, which the parliament calls to suspend. The EU – South Korea agreement contains insufficient safeguards. TTIP should not change our privacy standards, as privacy is not in the commission’s negotiating mandate. But the whole point is that the US proposal will make our privacy laws unenforceable. The US tabled a proposal that will undermine our power to suspend cross border flows of personal data.

Garcia Bercero did not acknowledge the issue, he keeps open the possibility to surrender our privacy.

Secrecy

Secrecy, general reassurances and inability to acknowledge real issues: these people learned nothing from ACTA.

To stop TTIP, the protests will have to be 20 times as big as the protests against ACTA were. If the commission goes on like this, it will get them.

If you care for your privacy, for digital rights, do take a look at the wepromise website.

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US wants to undermine privacy in TTIP negotiations

(Updated) In the EU – US trade negotiations (TTIP / TAFTA) the US tabled a proposal that would prohibit to require local data storage. If the EU accepts this proposal, the EU would give away an instrument essential to protect privacy.

On 5 March 2014 the Greens/EFA group in the European Parliament organised a meeting on the complex relationship between data protection, the Transatlantic Trade and Investment Partnership (TTIP), and the general context of EU-US relations after the Snowden revelations. (Stream available)

I spoke about why trade negotiations are not a good forum to protect privacy, see below.

During the meeting EU commission trade negotiator Jan-Willem Verheijden said that privacy is not in the EU negotiating mandate. The EU did not table text. The US did table a proposal in the eCommerce chapter, with two elements:
- general proposal on data flows similar to the US – South Korea trade agreement,
- prohibition on parties to require local data storage.

See video, first mention at 42.35, question MEP Martin Köhler and reply at 59.15.

So the problem is that privacy is not on the table in the TTIP negotiations, but data flows are, which brings privacy to the table, while trade negotiations are not a good forum, privacy is not in the mandate and the EU is just reforming its privacy law. How to solve this?

The EU has to keep data flows out of TTIP, and take separate measures. The LIBE report on “US NSA surveillance programme, surveillance bodies in various Member States and impact on EU citizens’ fundamental rights and on transatlantic cooperation in Justice and Home Affairs”, scheduled for a plenary vote next week,

“40. Calls on Member States’ competent authorities, in particular the data protection authorities, to make use of their existing powers and immediately suspend data flows to any organisation that has self-certified its adherence to the US Safe Harbour Principles, and to require that such data flows are only carried out under other instruments and provided they contain the necessary safeguards and guarantees with respect to the protection of the privacy and fundamental rights and freedoms of individuals;”

Suspension of flows of personal data has to be possible. The EU has to be able to say: as long as conditions are not met, personal data can not travel across the border.

When this measure is executed, data will have to temporarily stay on a local server. This amounts to a temporary local data storage obligation, which would be in conflict with a prohibition on parties to require local data storage, unless this falls under a general exception or the right to regulate.

The general rule will become free flow of personal data and the EU may have an exception to protect privacy. Or may not.

And who is going to decide on that? Arbitrators who are trade specialists, not human rights specialists and may find free flows of data more important than privacy. Or worse, investor-to-state dispute settlement tribunals.

The EU would give away an instrument essential to protect privacy. The US wants to undermine our privacy in the TTIP negotiations.

In my introduction I spoke about systemic issues with trade agreements and arbitration which result in the EU losing leverage needed to protect privacy:

Privacy, a trade irritant?

I will say a few things about procedural issues with TTIP. I will show that there are systemic issues with trade negotiations, with the ratification of agreements, and with the interpretation of agreements. There is a serious risk that TTIP will contain badly drafted rules and definitions. The EU will lose leverage needed to protect privacy.

Trade agreements

Trade negotiations are not a good forum to protect privacy.

First, negotiators and companies work together to remove obstacles to trade. Companies want free flows of data across borders. For companies, anything that hinders free flows of data, is a trade irritant that should be removed.

Second, trade negotiations take place behind closed doors. Citizens do not have access to draft texts. Companies have more access.

Third, the commission created an expert group of 14 people, half business, half civil society, with greater access to information. This is a step in the right direction. But 7 people can not represent civil society.

The devil is in the details. When texts are secret, it is impossible to give precise feedback. There is serious risk on badly drafted rules and definitions.

After the negotiations are over, the commission will publish a final text. This brings us to the ratification phase.

The ratification phase

The European Parliament only has a yes or no vote. If a human rights impact assessment concludes there are human rights issues, there is no possibility to change the text, there is only a yes or no vote.

Trade agreements are a package, no amendments are possible. The political capital invested in TTIP is enormous. Even if the end result of TTIP is disappointing, the Commission will have to sell it as a success.

And will citizens have all the information after the negotiations? In the case of ACTA, the Anti-Counterfeiting Trade Agreement, the European Parliament International Trade committee kept the legal service’s opinion on ACTA secret.

I requested the opinion. Mr Wieland, vice-president of the parliament, refused to disclose the opinion and explained: “the Union is now under certain obligations concerning due and successful ratification of ACTA.”

I find this incomprehensible. Will Mr Wieland say the same about TTIP?

In the ratification phase there will only be a yes or no vote and the pressure to say yes to TTIP will be enormous. There is a serious risk that badly drafted rules and definitions will slip through.

This brings us to trade agreements that entered into force. I will give an example, the EU – South Korea trade agreement.

EU – South Korea trade agreement

Article 7.50 (e) (ii) of this agreement is similar to GATS article 14 (General Agreement on Trade in Services). It allows to limit trade to protect privacy, as long as there is no arbitrary or unjustifiable discrimination between countries.

Article 7.43 has two obligations. Each party shall permit free flows of data. And each party shall adopt adequate safeguards to the protection of privacy, in particular with regard to the transfer of personal data.

“Adequate” is a weak standard. The trade agreement opens free flows of data, without real safeguards.

There has been an incident with South Korea about free flows of data. The Financial Times reports that banks had to obtain customer consent to transfer data outside Korea. EU commissioner De Gucht criticised this. South Korea then removed the obligation to first obtain customer consent. In other words, Korea removed the trade irritant.

In sum, the EU acts strongly to protect free flows of data, but the trade agreement does not provide strong privacy protection.

This brings us to the last section, the interpretation of international agreements.

Interpretation of trade agreements

In Europe, citizens can test in court laws that harm their privacy. This includes testing the implementation of international agreements. But citizens can not test international agreements themselves. The interpretation of trade agreements happens at a level above the EU, outside the reach of citizens.

If the parties to an agreement disagree over the interpretation, they can use state-to-state dispute settlement. This is an arbitration procedure. The arbitrators are trade specialists, not human rights specialists. They may find free flows of data more important than privacy.

The European Commission wants to add a second arbitration procedure to TTIP, investor-to-state dispute settlement, or ISDS. Like citizens, companies are not parties to international agreements. But investor-to-state dispute settlement gives companies equal standing to states. ISDS gives multinationals the right to sue states before special tribunals if decisions may lead to lower profits than expected. ISDS gives multinationals rights citizens do not have.

Arbitration tribunals consisting of three investment lawyers can overturn decisions of supreme courts. The arbitrators have a perverse incentive, they are paid by the day. The ISDS system is corrupted. If the EU would like to take measures to protect privacy, companies can threaten with huge ISDS claims, which will have a strong chilling effect.

Conclusion

In conclusion, there are systemic issues with trade negotiations, with the ratification of agreements, and with the interpretation of agreements. There is a serious risk that TTIP will contain badly drafted rules and definitions.

Inclusion of free flows of data in TTIP will make privacy an issue to be decided by TTIP dispute settlement tribunals. The EU will lose leverage needed to protect privacy. In addition, investor-to-state dispute settlement may further undermine privacy.

See also:

Investment tribunals above supreme courts

GATS

EU-South Korea Free Trade Agreement

Financial Times

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Tentative remarks on leaked CETA IP chapter

Today the German Pirate party published a leaked version of the intellectual property (IP) rights chapter of the EU – Canada trade agreement (CETA), version as of 17 December 2013.

See Carta blog: Piraten leaken CETA-Dokument zu IPR (German).

At first sight, the chapter does not go beyond EU law. That is not good news, in the sense that there are serious problems with EU IP law, exportation of EU law is not a good idea. EU IP law creates problems regarding access to knowledge and participation in culture, for remix artists, sequential innovation, and for software developers.

The FFII called upon the EU commission to solve such problems and make EU law compatible with the UN International Covenant on Economic, Social and Cultural Rights (ICESCR). The commission takes the wrong turn by exporting EU IP law. If we suffer from this, the Canadians should suffer as well? We need policy space for reform, not further lock-in, nor should we export harm. Software patent trolls will be happy.

Compared with ACTA

The damages in CETA do not contain the much criticized retail price damages, which were part of ACTA, the Anti-Counterfeiting Trade Agreement, and are part of the EU – Singapore trade agreement proposal.

The injunctions do not contain “inaudita altera parte”, the much dreaded possibility to decide on injunctions without the infringer present.

So far so good. But, I do not see what was footnote 2 in ACTA, and is footnote 33 in the EU – Singapore agreement, the right to exclude patents from the scope of the civil enforcement section.

All the strong enforcement measures (damages, injunctions, provisional measures) will be available for software patent trolls.

The strong enforcement measures further create problems for access to knowledge and taking part in culture, for remix artists, and for inventors involved in sequential invention – like software developers.

Applying strong enforcement measures where they should not be applied harms citizen’s economic, social, cultural, civil and political rights.

Objectives of CETA

Article 1 states the objectives.

“The objectives of this chapter are to:
(a) facilitate the production and commercialization of innovative and creative products, and the provision of services, between the Parties; and
(b) achieve an adequate and effective level of protection and enforcement of intellectual property rights.”

Not a word about access to knowledge and participation in culture. This world needs solutions, like patent delinkage for better access to medicine, but the commission only wants better commercialization. And harming sequential innovation does not help innovation.

Article 5.1 mentions a whole series of rights treaties, such as the Berne Convention, WIPO Copyright Treaty, WIPO Performances and Phonograms Treat, Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations.

Not a word about the UN International Covenant on Economic, Social and Cultural Rights (ICESCR), which provides a much better balance than IP rights.

ISDS

Furthermore, the table of contents reveals that there will be 71 pages on investor-to-state dispute settlement (ISDS), which puts investment tribunals above our supreme courts. Investor-to-state dispute settlement gives multinationals the right to sue states before special tribunals if changes in law may lead to lower profits than expected. Multinationals can challenge reform of copyright and patent law, challenge environmental and health policies.

ISDS alone is a reason to vehemently oppose CETA.

Access to medicine

There are many provisions on pharmaceutical products. I leave these to experts in this field to comment on.

TPM

There are many provisions on technical protection measures. I do not have sufficient knowledge here, I assume they go further than WIPO treaties, otherwise there is no reason for them in this text. This then further limits EU policy space.

See also: Bits of Freedom: Hey CETA, Je Lekt Iets (Dutch)
iRights.info: Was das CETA-Abkommen fürs Urheberrecht bedeuten könnte (German)

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A word on chlorinated chicken in TTIP

These days the European Commissioner for Trade Karel De Gucht claims chlorinated chicken was not a valid concern of the TTIP negotiations.

EU investment agreements will explicitly state that legitimate government public policy decisions – on issues such as the balance between public and private provision of healthcare or “the European ban on chicken carcasses washed with chlorine” – cannot be over-ridden.

In the US it is common to use chlorine for desinfection of slaughtered poultry. The EU denies these US imports on food safety grounds under 191 TFEU (precautionary principle). The chlorinated chicken became a poster child of consumer campaign groups against the TTIP and raised suspicion of the European public against the TTIP. Clorinated poultry is a top priority of the United States trade administration and former Commissioner Verheugen already had indicated concessions in the TEC talk rounds which he could not politically enact. MEP Marietje Schaake explains the bottlenecks of TTIP:

The EU has invoked the precautionary principle to ban the import of US hormone-treated beef. Other areas of concern are chlorine-washed chicken, cherries, molluscan shellfish, tallow, raw milk and genetically modified/engineered crops (GMO/GE). High levels of consumer protection and current practices will make it difficult for both sides to compromise or adapt standards on these highly sensitive issues.

The recent EU Commission hints that chlorinated chicken was off the agenda for TTIP strike those odd who follow the transatlantic talks for a while. Here is what the United States negotiators told about the third round of negotations:

“So during the third round this week, the negotiating groups have been meeting on, again, virtually all of the areas that we would anticipate would be covered in the TTIP. And just to recall, these areas include market access for industrial and agricultural products, and of course, the rules of origin for those products; we had the regulatory and standards group which focused on technical regulations; the sanitary and phytosanitary regulations primarily in the area of food safety, regulatory coherence, and particular sectors.”

  • “Rules of origin” means geographical indications (GI), the EU agenda point.
  • “sanitary and phytosanitary regulations primarily in the area of food safety” means chlorinated poultry and similar issues on the US trade agenda.

Bloomberg reported in 2012:

Both sides will seek to lower regulatory barriers that hinder transatlantic trade, such as long-running disputes over chemicals, genetically modified foods and chlorinated chicken.

The implications of the EU Commission attempts to dismiss that the US trade demands would be considered in the package weaken the US negotiating position and test their willingness to participate in the TTIP agreement. Even more they endanger an adoption of the TTIP in the European Parliament if the demands would be considered.

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Commission says no IP harmonisation with TTIP

The Commission announced:

Given the efficiency of their respective systems, the intention is not to strive towards harmonisation, but to identify a number of specific issues where divergences will be addressed.

What does “harmonisation” mean within the European Union institutions? Addressing legal and regulatory divergences between member states.

Or as Wikipedia puts it:

In relation to the European Union, harmonisation of law (or “harmonisation”) is the process of creating common standards across the internal market.

Though each EU member State has the primary responsibility for the regulation of most matters within their jurisdiction and consequently each has its own laws. Harmonisation aims to:

create consistency of laws, regulations, standards and practices, so that the same rules will apply to businesses that operate in more than one member State, and so that the businesses of one State do not obtain an economic advantage over those in another as a result of different rules.
reduced compliance and regulatory burdens for businesses operating nationally or trans-nationally.

A objective of the European Union to achieve uniformity in laws of member states is to facilitate free trade and protect citizens.[1]

Harmonisation is a process of ascertaining the admitted limits of international unification but does not necessarily amount to a vision of total uniformity.[2]

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IP and privacy in TTIP / TAFTA

With other representatives of civil society organisations and business stakeholders, I spent an afternoon at the Dutch Ministry of Foreign Affairs talking about the ongoing talks on a proposed EU – US trade agreement (TTIP/TAFTA).

Intellectual property (IP)

Of course, the ministry assured us that TTIP will not contain ACTA-like Internet provisions or provisions that will limit access to medicine. TTIP will neither change substantial copyright nor the enforcement of copyright. We can only check this after texts are published, may that happen soon. The text of the EU-Singapore FTA is not reassuring, with examples of damages that go beyond adequate damages, creating an upward trend. See: ACTA-plus damages in EU-Singapore Free Trade Agreement.

The story on IP is that multilateral agreements are hard to conclude, the US and EU have rather similar systems, how to deal with remaining differences? The Commission follows a bottom up approach, it inventorises which issues are important for companies, the issues may regard both substantial issues and efficiency issues. The bottom up approach was earlier mentioned in A TTIP Christmas wish.

Issues that may come up in the negotiations are geographical indications (important for the EU), exportation of the EU artist’s resale right, grace period (patents), broadcasting rights, trade secrets and harmonisation of patent procedures.

Regarding the last issue, I noted that mutual recognition of patent grants should not lead to software and business patents in Europe. In 2005 the European Parliament overwhelmingly rejected the software patents directive, they should not come back by the back door.

There are no texts yet.

Privacy

Regarding privacy, the ministry pointed to GATS art 14, EU-Korea FTA article 7.50 (e) (ii) (is similar to GATS) and article 7.43, and the Charter of Fundamental Rights of the European Union article 8. The story became less convincing when the EU-US safe harbor agreement was described as providing adequate protection.

The Dutch government aims for provisions as in the EU-Korea FTA and solving conflicts resulting from the extraterritorial effects of the US Patriot Act.

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Seven people can not represent civil society

On 10 February the Information Society Project at Yale Law School organised a debate on Trade and Transparency in the Internet Age.

Below my introduction:

I would first like to thank the university for the invitation to speak here. I will say a few things about ACTA, the Anti-Counterfeiting Trade Agreement, about its lack of openness, both in the negotiation phase and in the ratification phase. After that I will say a few things about the proposed trade agreement between the United States and the European Union.

In May 2008 Wikileaks published a secret discussion paper on a proposed new international agreement, the Anti-Counterfeiting Trade Agreement, or ACTA. The discussion paper showed that ACTA could contain far-reaching enforcement measures, including criminal measures. ACTA was an alarming forum shift. For example, there is no EU criminal law aimed against intellectual property rights infringements. A few years before ACTA, the European Commission had proposed an EU criminal law against IP infringements. The European Parliament had formulated its position, the proposal was in the hands of the EU Council, the institution that represents the member states. The debates were intense, as civil society knew that badly drafted definitions could lead to criminalisation of everyday computer use.

In 2008, in the midst of the open legislative process, the council and commission started secret ACTA negotiations on the same substance. At the end of the ACTA process, the European Parliament would only be able to vote yes or no. The EU has “fast track” by constitutional design. In a yes or no vote, it could easily happen that badly drafted definitions would slip through.

After analysis of the leaked ACTA discussion paper, there was no further information. We couldn’t analyse anything, we couldn’t give feedback, we couldn’t inform citizens about developments. The only thing we could do was to protest against the secrecy of the negotiations. The FFII and the European Digital Rights initiative filed complaints with the European Ombudsman. Member of the European Parliament Sophie in ‘t Veld sued the commission. In parallel, Corporate Europe Observatory (CEO) sued the commission over secrecy of documents in the EU-India trade negotiations, arguing that documents disclosed to companies should be disclosed to citizens as well.

The complainants lost all their cases. In the EU, the legislative process has to be as openly as possible and as closely as possible to the citizens. But the protection of international relations is a mandatory exception to openness. According to EU case law, the commission can keep document secret to allow mutual trust between negotiators, see for instance In ‘t Veld v Commission.

In December 2009 the Lisbon Treaty entered into force, giving the European Parliament greater power in the conclusion of international agreements. The parliament exercised its power by adopting various resolutions on ACTA, including strong language on openness.

There were more and more leaks of ACTA negotiation documents, which showed that the commission was not always accurate in telling what ACTA was about. For instance, the commission denied that “three strikes” had ever been proposed, the leaks showed that the US did propose three strikes. The leaks made it possible to provide precise feedback, this led to some improvements in the text. For instance, in the later drafts the parties could exclude patents from the civil enforcement section. In April 2010 the parties published a consolidated draft text, this made giving further feedback possible. Neither the leaks, nor the publication of the draft text harmed the progress of the negotiations.

At the end of 2010 the negotiators reached an agreement and published the final draft. Finally, public scrutiny and open debate could start. Then, something amazing happened. The European Parliament had stressed the importance of openness in various resolutions. But now that ACTA moved over to the parliament, the parliament itself started to keep documents secret.

First, the parliament denied the existence of some parliamentary documents. There is no legal basis for this. The parliament can refuse to disclose documents, but it can not deny the existence of documents. The FFII filed a complaint with the ombudsman.

Second, two parliamentary committees asked the parliament’s legal service an opinion on the published ACTA text. The parliament refused to disclose the legal service’s opinion, stating that disclosure of the opinion would harm international relations. But how can disclosure of an opinion on a publicly available text harm international relations, as the negotiations were already over? The FFII filed a second complaint.

In this complaint the FFII argues that the decision is not compatible with the human right to take part in an informed way in important decision-making processes. The FFII refers to the International Covenant on Civil and Political Rights, and to the International Covenant on Economic, Social and Cultural Rights. States can only interfere with human rights by law, if necessary in a democratic society and only in so far as proportionate. According to the FFII, the parliament’s decision to keep the documents secret fails the necessity and proportionality tests.

All the anger over years of secrecy, and over the ACTA end result, led to massive demonstrations throughout Europe. A few months later, the parliament overwhelmingly rejected ACTA. In sum, the secrecy of the negotiations led to a substandard text, and many angry people.

In July 2013 the European Union and the United States opened trade negotiations on a Transatlantic Trade and Investment Partnership, or TTIP. The European Commission maintains that confidentiality of negotiations is needed, but also understands that secrecy of negotiations angers people. The commission moves in the direction of openness, it published proposals and created an expert group of 14 people, half business, half civil society, with greater access to information. The commission will also hold a consultation on investor-to-state dispute settlement – the most controversial aspect of TTIP.

These are steps in the right direction. But 7 people can not represent civil society. And with ACTA, academics provided essential analysis. Academics are experts, but will stay uninformed, unless there are more leaks. We are still far away from the human right of everyone to take part in an active and informed way, and without discrimination, in any important decision making process.

A proportionality test, as found in the human rights covenants could help to find the right balance. I will give two examples. First, in negotiations parties table texts, these are then known to the other party. Tabled texts can be shared with the public as well. After both or all parties tabled texts, the parties make a text with brackets. These texts can be published as well. This is standard practice in many international organisations. Openness leads to greater legitimacy, quality and a better balance.

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Make copyright compatible with the UN International Covenant on Economic, Social and Cultural Rights

I just made a personal submission to the Public Consultation on the review of the EU copyright rules.

I used the You can fix copyright website. Very handy, thanks!

I added an attachment, see below or pdf, in which I argue that copyright law has to be made compatible with the UN International Covenant on Economic, Social and Cultural Rights (ICESCR).

——–

Copyright law and the International Covenant on Economic, Social and Cultural Rights

Ante Wessels, 2014

Introduction

This note is an attachment to my submission to the 2014 Public Consultation on the review of the EU copyright rules. This note argues that copyright law has to be made compatible with the UN International Covenant on Economic, Social and Cultural Rights (ICESCR).

This note limits itself to three ICESCR rights relevant for the digital environment: access to knowledge, access to culture and authors’ rights.

The first section introduces the ICESCR. The second section distinguishes intellectual property rights and ICESCR rights. It discusses how to deal with conflicts within the ICESCR system. It argues that copyright law needs exceptions for under served markets and remix artists, and that it is questionable whether after life duration of copyright is compatible with the ICESCR. The third section discusses the right to enjoy intellectual property and concludes that the right to enjoy intellectual property does not change the conclusion that copyright law needs the aforementioned exceptions.

Some of these exceptions may best be made in substantive law. As long as they are not implemented in substantive law, enforcement law has to make such exceptions.

The European Union and the ICESCR

The EU’s legislation on intellectual property rights has to be made compatible with the UN International Covenant on Economic, Social and Cultural Rights.

The EU is obliged to respect, protect and fulfil the human rights enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR). This follows from constitutional traditions common to the Member States (Article 6 (3) Treaty on European Union; see also ECJ case C-73/08 Bressol and Others). The EU must desist from acts and omissions that create a real risk of nullifying or impairing the enjoyment of ICESCR rights.

This note limits itself to the rights mentioned in article 15 (1) (a), (b) and (c) of the ICESCR.

Article 15 (1) (a) and (b) of the ICESCR recognize the right of everyone to take part in cultural life; and to enjoy the benefits of scientific progress and its applications. This note uses “rights to access to knowledge and culture” for these two rights.

The right of everyone to take part in cultural life includes the rights to access to cultural goods, to benefit from the cultural heritage, to be involved in creating the spiritual, material, intellectual and emotional expressions of the community, to seek and develop cultural knowledge and expressions, and to share them with others. (ECOSOC, 2009)

Under ICESCR 15 (1) (c), authors have the right to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. This note uses “authors’ rights” for this right. The Universal Declaration of Human Rights has the same balance between the rights in article 27.

Intellectual property rights versus ICESCR rights

The Committee on Economic, Social and Cultural Rights (CESCR) clarifies in its authoritative interpretation General Comment No. 17, that it is important not to equate intellectual property rights with the human right recognized in ICESCR article 15, paragraph 1 (c): “Human rights are fundamental as they are inherent to the human person as such, whereas intellectual property rights are first and foremost means by which States seek to provide incentives for inventiveness and creativity, encourage the dissemination of creative and innovative productions, as well as the development of cultural identities, and preserve the integrity of scientific, literary and artistic productions for the benefit of society as a whole. (…) Whereas the human right to benefit from the protection of the moral and material interests resulting from one’s scientific, literary and artistic productions safeguards the personal link between authors and their creations and between peoples, communities, or other groups and their collective cultural heritage, as well as their basic material interests which are necessary to enable authors to enjoy an adequate standard of living, intellectual property regimes primarily protect business and corporate interests and investments. Moreover, the scope of protection of the moral and material interests of the author provided for by article 15, paragraph 1 (c), does not necessarily coincide with what is referred to as intellectual property rights under national legislation or international agreements.” (ECOSOC, 2006).

How to deal with conflicts between human rights, for instance the right to access to knowledge and authors’ rights? Within the ICESCR system, the rights to access to knowledge and culture have to be balanced with authors’ rights. Yu, P. (2011) recommends just remuneration for conflicts taking place within the human rights system: “Under this approach, authors and inventors hold a right to remuneration (rather than exclusive control), while individuals obtain a human rights-based compulsory license (as compared to a free license).”

General Comment No. 17 also clarifies that under ICESCR article 15, paragraph 1 (c) legal entities are not protected at the level of human rights.

Article 4 of the ICESCR provides that states may subject ICESCR rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society. Article 4 ICESCR provides a tool to assess whether EU laws are compatible with the ICESCR. Four examples may clarify this for the digital sector.

Example one: Access to knowledge and culture. In emerging economies, there are serious access to knowledge and culture deficiencies. Karaganis et al. (2011) show that relative to local incomes in Brazil, Russia, or South Africa, the price of a CD, DVD, or copy of Microsoft Office is five to ten times higher than in the United States or Europe. There is no distribution of legal CDs and DVDs outside the capitals. Up to 90 percent of the people in emerging economies can only turn to illegal media copies.

Such problems also exist in eastern European emerging economies. Euractive.com (2012) reports: “Ivan Dikov writes in an op-ed with the Bulgarian news website Novinite that Bulgaria is a country much poorer than the remaining ACTA signatories and could not in fact assume the same responsibilities. Torrent sites such as Zamunda and Arena are the most popular websites in Bulgaria. The reason for that is not just the enormous amount of music, films, software, and books that they make available to anybody for free. The sites are not accessible from outside the country. These torrent sites are technically in violation of all sorts of copyright laws but what they offer has no alternative for the people in Bulgaria for the time being given the country’s social and economic development, Dikov argues.”

In Bulgaria, digital technology helps to solve deficiencies in access to knowledge and culture, but EU law harms this access. In Bulgaria, and other countries in similar circumstances, EU law nullifies or impairs the rights to access to knowledge and culture for many, this is neither compatible with the second condition of article 4 ICESCR, “compatible with the nature of these rights”, nor with the third, “promote the general welfare in a democratic society”.

The EU needs an under served market exception. As long as EU substantive law does not have such an exception, EU enforcement law (IPRED) has to make such an exception.

Example two: Remix artists. It is often impossible to ascertain (affordable) licenses for remixing music and movies. This interferes with various human rights:
- authors’ rights of remix artists. The ICESCR does not exclude any author (“everyone”). Artists remixing music or movies are protected at the level of human rights.
- artists and public’s access to culture rights, which include the rights to benefit from the cultural heritage, to be involved in creating the spiritual, material, intellectual and emotional expressions of the community, to seek and develop cultural knowledge and expressions, and to share them with others – as seen above.

Under current EU intellectual property enforcement law remix artists face injunctions and damages. This nullifies or impairs the human rights mentioned in this example, this is not compatible with two conditions of article 4 of the ICESCR, as it is neither compatible with these rights, nor promotes the general welfare in a democratic society.

An ICESCR compatible solution could be that the individual original authors have a right to remuneration and the individual remix artists obtain a human rights-based compulsory license.

Example three: Duration. After life, the author’s right falls away. Interference with the rights to access to knowledge and culture has to comply with article 4 of the ICESCR. It is questionable whether after life duration of copyright is compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.

Example four: Orphan works. An orphan work is a copyright protected work for which rightsholders are unknown or not traceable. Unavailability of works interferes with the rights to access to knowledge and culture. A human rights-based compulsory license with a right to remuneration may provide a solution.

The right to enjoy intellectual property

The section above showed that, from an ICESCR perspective, EU law needs exceptions for under served markets and remix artists. This section will discuss whether such exceptions conflict with the right to enjoy intellectual property.

Europe has two regional human rights instruments, the Council of Europe’s European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights (CFR). Both instruments protect the right to enjoy property, including intellectual property.

The ICESCR rights are freedoms, they are rights inherent to the human person as such. Interference with ICESCR rights is only allowed if the interference is compatible with article 4 ICESCR mentioned above.

The European human rights instruments protect the right to enjoy property, after it is lawfully acquired. The protection is limited.

Intellectual property rights are not rights inherent to the human person as such. They are granted by law, they are rule-based privileges. They may arise by law and are limited by law. They can not interfere with rights inherent to the human person as such, unless the interference is compatible with article 4 ICESCR.

European human rights instruments protect intellectual property rights, but only after they are lawfully granted, that is, after the ICESCR article 4 test. The ICESCR article 4 test comes first.

In case of conflict between ICESCR rights and intellectual property rights, the first step is to identify and balance the ICESCR rights.

The next step is to assess whether interference of intellectual property rights with ICESCR rights is compatible with article 4 ICESCR. In the four examples above, injunctions and damages nullify the enjoyment of ICESCR rights. This is not compatible with the nature of these rights. They fail the article 4 ICESCR test.

From an ICESCR perspective, copyright law needs exceptions for under served markets and remix artists. The right to enjoy intellectual property does not change this conclusion, as intellectual property rights are law-based and have to be compatible with the ICESCR.

Conclusion

To be compatible with the International Covenant on Economic, Social and Cultural Rights, EU copyright and enforcement law need exceptions for under served markets and remix artists. It is questionable whether after life duration of copyright is compatible with the ICESCR. Some of these exceptions may best be made in substantive law. As long as they are not implemented in substantive law, enforcement law has to make such exceptions.

References

EC (2012), Civil enforcement of intellectual property rights: public consultation on the efficiency of proceedings and accessibility of measures, http://ec.europa.eu/internal_market/consultations/2012/intellectual-property-rights_en.htm

ECJ, ( 2010), Case C-73/08, Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française,
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008J0073:EN:NOT

ECOSOC, (2006), Committee on Economic, Social and Cultural Rights, General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Any Scientific, Literary or Artistic Production of Which He Is the Author (Article 15, Paragraph 1(c), of the Covenant), 4, U.N. Doc. E/C.12/GC/17 (Jan. 12, 2006), http://www2.ohchr.org/english/bodies/cescr/comments.htm

ECOSOC (2009), Committee on Economic, Social and Cultural Rights, General comment No. 21, Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/21, obtained from Ohchr.org
http://www2.ohchr.org/english/bodies/cescr/comments.htm

Euractive (2012), ACTA activates European civil society, http://www.euractiv.com/infosociety/acta-activates-european-civil-so-news-510533

Hargreaves, I., (2011), Digital Opportunity, A review of Intellectual Property and Growth, http://www.ipo.gov.uk/ipreview-finalreport.pdf

Karaganis, J. (ed.), (2011), Media Piracy in Emerging Economies, SSRC books, http://piracy.americanassembly.org/the-report/

Yu, P. K., (2011) Intellectual Property and Human Rights in the Nonmultilateral Era (September 12, 2011). Florida Law Review, Vol. 64, pp. 1045-1100, Drake University Law School Research Paper No. 11-04, http://ssrn.com/abstract=1926102

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EU Commission set to betray us with ISDS

Faced with massive critique, the European Commission announced a consultation on investor-to-state dispute settlement (ISDS).

ISDS gives multinationals the right to sue states before special tribunals if changes in law may lead to lower profits than expected. Multinationals can challenge reform of copyright and patent law, challenge environmental and health policies.

The Commission even announced the publication of a proposed EU text. That seems a step forward.

But a diplomatic source told EU Trade Insights that other trade deals are unlikely to change. For instance the trade agreement with Canada also contains ISDS.

So the Commission will hold a consultation on ISDS that will attract the attention, and secretly advance ISDS in other agreements…

All ISDS negotiations will have to put on hold.

Let’s not forget: ISDS is not acceptable in the agreement with the US, not acceptable in the agreement with Canada, not acceptable in the agreement with Singapore, not acceptable in any agreement.

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