[A2k] It´s a bird, it´s a plane....it´s "ACTA light"

david at davidhammerstein.org david at davidhammerstein.org
Wed Sep 1 13:16:18 PDT 2010

It´s a bird, it´s a plane… no it’s “ACTA light”.

by David Hammerstein, TACD

The new spin on the latest ACTA text after DC round

Notes from closed-door debriefing in European Parliament on secret text.

“We worked 16 hours a day for eight long days in DC to produce a  
readable text that we all agree on”, modestly stated EU negotiator Luc  
Devigne. He makes you wish he wouldn’t work so hard for the good of  
all of us.

What is clear is that the EU representative wants to show that he is  
being responsive to the concerns being expressed about ACTA and that  
the new “unidentified, undisclosed and flying” ACTA will be lighter,  
more vague and a happy medium for all. Though he gave us a large  
serving of political marketing and double speak, it is evident that  
the anti-ACTA campaign is having a deep impact on the parties involved.

Today in the European Parliament in Brussels Luc Devigne from DG Trade  
briefed the International Trade Commission in a closed door meeting on  
the latest round of the ACTA negotiations. He gave the impression that  
thanks to the EU many things were being “scaled back” to calm the  
worries of citizens and certain industries such as Internet Service  
providers or generic medicine producers.

He insisted that lots of progress was made in DC on most topics and  
that now the text was “less complicated”. At the same time he stated  
that there was a still a “long way to go” to bridge the gap between  
the US and the EU on issues of scope of rights covered in border  
measures (EU broader, US narrower), geographical indications,  
industrial design and border measures concerning not only import but  
affecting goods being exported and in transit. The US only wants  
trademarks, and copyright in border measures that will be limited to  
imports (as established in TRIPS), while the EU wants this extended At  
the same time he repeated that all patents were out of border measures  
and criminal sanctions and that nothing in ACTA would affect “access  
to medicine.”

The EU wants criminal enforcement measures on the use of Internet to  
spread fake medicines counterfeit industrial designs or trademarks,  
while the US does not agree.

According to Devigne the good news is that the clear references to ISP  
liability, along the lines of the US DMCA, in previous texts have been  
removed from the present text thanks to the EU. Now all enforcement  
measures proposed in the Internet will be “voluntary”. This “will  
please some, not others”, according to Devigne.

He spoke of a totally new “preamble” that includes “safeguards” with  
reference to the principles of TRIPs, the Doha Declaration on public  
health and the insistence that no enforcement measure in ACTA should  
threaten “privacy, freedom of expression or fundamental rights.”  
Devigne insisted that the checks and balances of TRIP concerning  
cooperation, technology transfer and harmonization of different  
interests were now part of ACTA.

On “commercial scale” the EU will only accept a vague, non defined  
term that will be left up to the courts of member states because EU  
law has no competence over this.

He blasted the US for opposing the publication of the present text and  
regretted not being able to have more public participation. He  
promised there would be a public release of the text before the final  
agreement is signed (How nice of them!). The next round will be  in  
Tokyo at the end of the month.

The novelty of the new text seems to be the “preamble” and the  
elimination of references to compulsory secondary liability. Of  
course, the whole discussion today was over an obscure object of  
desire of the content industry called the unpublished DC ACTA text. It  
was easy for Devigne to please everyone without his audience being  
able to peruse the small print. Today was yet another surrealistic  
exercise produced by the progressive Obama Administration´s  
transparency policy.

Acta will never be "light". Its institutional structure bypasses  
normal deccratic processes and UN institutions. Whatever the outcome  
of the next round ACTA sets a number of dangerous precedents aimed at  
obstructing the fair management of the knowledge commons.

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