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Michael Geist Blog
Michael Geist - Canada Research Chair of Internet and E-commerce Law at the University of Ottawa, Faculty of Law

U.S. on ACTA: Full Steam Ahead This has been a remarkable two weeks for those tracking the Anti-Counterfeiting Trade Agreement, as the proposed treaty has begun to attract attention at the highest political levels.  The European Union has undergone the greatest change.  First, the identification of the transparency holdouts led to a unanimous EU position favouring release of the text.  This week, EC Commissioner for Trade Karel De Gucht stated: "I will see to it that at the next negotiating round, in April, the Commission will vigorously push its negotiating partners to agree to release the text."  This leaves the U.S., South Korea, and Singapore as the remaining barriers to full transparency.  Second, this week's European Parliament resolution places the European Commission on the defensive with respect to ACTA.  The negotiations will continue, but Europe clearly faces internal challenges in the ACTA process.

The U.S. response to the European developments came yesterday, as President Obama reiterated his support for finishing ACTA.  In comments on IP enforcement, Obama discussed the need to "aggressively protect" IP, pointing specifically to ACTA.  The reference to ACTA was clearly meant to send a strong signal that the U.S. intends to continue its push for a treaty. Indeed, the U.S. has not changed its position on anything with respect to ACTA - it is one of the lone holdouts on the issue of transparency and its negotiating position on the text itself has not moved much through almost two years of negotiations.  Consider the Civil Enforcement chapter, which was first proposed by the U.S. in July 2008 at the second round of ACTA talks in Washington.  The recent leak of the latest version of the chapter shows that practically nothing has changed:


Article 2.1 Availability of Civil Procedures
1. No Change
2. No Change

Article 2.2 Damages
1. No Change
2. No Change
3. Wording Change:
 

Original	New
Each Party shall provide that the right holders shall have the right to choose the remedy in paragraph 2 as an alternative to the remedy in paragraph 1.	Each Party shall provide that the right holder shall have the right to choose the system in paragraph 2 as an alternative to the damages in paragraph 1.

4. Change – transposed words

Original

New

Each Party shall also provide that its judicial authorities, [Option US: at least in proceedings concerning copyright or related rights infringement or willful trademark counterfeiting] shall have the authority to order, [Option US: except in exceptional circumstances][Option J: in appropriate cases], that the  prevailing party be awarded payment by the losing party of reasonable attorney’s fees.

Each Party [US/J:shall] also provide that its [US/J: judicial] authorities, [US/Can/Mor/MX/NZ: except in exceptional circumstances], [US/Can/Aus/Mor: {US/Aus/Mor: at least }in proceedings concerning copyright or related rights infringement or willful trademark counterfeiting,] shall have the authority to order, [J/Can/Aus/NZ: in appropriate cases], that the prevailing party be awarded payment by the losing party of [US/J: reasonable] attorney's fees

Article 2.3 Other Remedies
1. No Change
2. No Change
3. No Change

Article 2.4 Information related to Infringement

Change – Addition of words

Original	New
Each Party shall provide that in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to order the infringer to provide, for the purpose of collecting evidence…	Each Party shall provide that in civil judicial proceedings concerning the enforcement of [US/J: intellectual property rights], its judicial authorities shall have the authority upon a justified request of the right holder, to order the infringer to provide, [US/J; for the purpose of collecting evidence]…

Article 2.5 Provisional Measures
1. No Change
2. No Change
3. No Change

The U.S. position for the moment appears closer to "take it or leave it" with the bet that many ACTA partners will see little political alternative but to take it.

South Korea's Three Strikes Experience: 7 Months, No Shutdowns Heesob Nam reviews the South Korean experience with three strikes legislation that has been in place since July 2009.  The government reports thousands of initial notices that have been passed along by ISPs.  There have been no instances of using the subscriber termination power.

Wireless Sector at Forefront of Investment Deregulation Plans The Globe reports that the wireless sector is at the forefront of the government's foreign investment deregulation plans.  The issue was the subject of considerable confusion following mixed signals from the Speech from the Throne and the budget.

Harper to Answer Questions on YouTube Prime Minister Harper will be answering questions on YouTube over the next week, providing a chance to raise digital strategy issues in a digital environment

Australia Says No Domestic Changes Due To ACTA The Australian government has stated that it does not expect to make any changes to its domestic laws due to ACTA, hoping to persuade others to follow the Australian approach.

Ontario Adds Internet Safety to School Curriculum The Canadian Press reports that the Ontario government is adding Internet safety to the provincial elementary school curriculum.

European Parliament ACTA Resolution Passes Overwhelmingly, Threatens Possible Court Action The European Parliament today overwhelming approved a resolution on ACTA calling for transparency and raising concerns about substantive elements in the treaty such as the prospect of three strikes and personal border searches.  The final vote was 633 in favour, 13 against, and 16 abstentions.  The final approved text raises further issues:

• the European Parliament "deplores the calculated choice of the parties not to negotiate through well-established international bodies, such as WIPO and WTO, which have established frameworks for public information and consultation"
• It says "further ACTA negotiations should include a larger number of developing and emerging countries, with a view to reaching a possible multilateral level of negotiation"
• provides that "any agreement must include the stipulation that the closing-off of an individual’s Internet access shall be subject to prior examination by a court"
• warns that "ACTA provisions, notably measures aimed at strengthening powers for cross-border inspection and seizure of goods, should not affect global access to legitimate, affordable and safe medicinal products – including innovative and generic products – on the pretext of combating counterfeiting"

As for next steps, the European Parliament clearly wants action as the resolution also states that it "stresses that, unless Parliament is immediately and fully informed at all stages of the negotiations, it reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives."   This marks a major step toward ACTA transparency, highlighting the near-unanimous discomfort with the process and substance of ACTA to date.

Casting a Vote Against Internet Voting With the increasing shift from analog to digital, some elections officials are unsurprisingly chomping at the bit to move toward Internet-based voting.  My weekly technology law column (Toronto Star version, homepage version) notes that last year, Elections Canada officials mused about the possibility of online voting trials, noting the potential benefits of increasing voter participation, particularly among younger demographics.

More recently, the province of Alberta opened the door to incorporating new technologies into their voting processes as part of an electoral reform package.  New trials would require the approval of a legislative committee, but the province's Chief Electoral Officer acknowledged that online voting may be coming, noting "online voting is something that's on the forefront of people's minds. . . people say, 'I can do my banking online, but I can't do my voting online'."

The enthusiasm for Internet voting is understandable. At first blush, there is a certain allure associated with the convenience of Internet voting, given the prospect of increased turnout, reduced costs, and quicker reporting of results.  Moreover, since other security sensitive activities such as banking and health care have gravitated online, supporters argue that elections can't be far behind. Yet before rushing into Internet voting trials, the dangers should not be overlooked.


Democracy depends upon a fair, accurate, and transparent electoral process with outcomes that can be independently verified.  Conventional voting accomplishes many of these goals – private polling stations enable citizens to cast their votes anonymously, election day scrutineers offer independent oversight, and paper-based ballots provide a verifiable outcome that can be re-counted if necessary.

While technology may someday allow us to replicate these essential features online, many of them are currently absent from Internet voting, which is subject to any number of possible disruptions.  These include denial of service attacks that shut down the election process, counterfeit websites, phishing attacks, hacks into the election system, or the insertion of computer viruses that tamper with election results.

These concerns are based on real-world experience.  The Internet Corporation for Assigned Names and Numbers (ICANN), the organization that administers the domain name system, ran an online board of director election in 2000.  The experience was fraught with technical difficulties, leading a reviewer to conclude "the technical weakness in the registration system made it virtually impossible to assess the integrity of the voters' list, the security of the PINs, and secrecy of vote."

More recently, the Netherlands used Internet voting as part of its 2006 parliamentary elections.  The online option was an alternative for Dutch citizens working or living abroad.  Nearly 20,000 valid Internet votes were received at a cost of approximately 90 euros per Internet voter.  Two years later, the country implemented a ban on Internet voting.

The Canadian experience is limited primarily to municipal elections.  Several Ontario municipalities have offered Internet-based voting, enabling local residents to vote without leaving their homes.  Residents were required to pre-register for Internet voting and were provided with detailed instructions on the technical requirements to "vote anywhere."

Caution on Internet voting appears prudent, since experts have identified a long and costly list of necessary precautions, including random spot checks and post-vote verification programs to preserve anonymity.  Given the security risks, opening the door to provincial or federal Internet voting seems premature.  In the zeal to increase voter turnout, the reliance on Internet voting could inadvertently place the validity of the election process at risk.

InternetNZ To Host PublicACTA Conference in April InternetNZ has just announced that I will be the keynote speaker at PublicACTA, an ACTA conference scheduled just prior to the next round of ACTA negotiations in Wellington, NZ.

DFAIT Launches Consultation on Encryption Controls The Department of Foreign Affairs has launched a public consultation on encryption controls. Comments are due by April 30, 2010.

Internet Companies: UK Digital Economy Bill Threatens Free Speech Google, Yahoo, Facebook and Ebay, along with the UK's largest internet service providers, are arguing that changes to the UK Digital Economy bill poses a theat to free speech.

Backtracking on Foreign Investment in Telecom The government appears to be backtracking on quickly opening the Canadian telecom market to foreign investment.  Industry Minister Tony Clement's press secretary now says "our government will also be investigating the existing restrictions for the telecommunications industry. This is a complex issue involving changes to business models, rapidly evolving technology, and existing legislation, such as the 1993 Telecommunications Act."

Canadian Bookseller Association Opposes New Amazon Distribution Network The Globe and Mail reports that the Canadian Bookseller Association is urging the government to block Amazon.com from building a distribution network in Canada.

Access Copyright Alters Payment System Quill and Quire reports that Access Copyright has made significant changes in the way it distributes is funds. Eligible creators will now receive payments based on quantity of their output.

Joint European Parliament ACTA Transparency Resolution Tabled, Vote on Wednesday A joint resolution on Transparency and State of Play of ACTA negotiations from virtually all party groups in the European Parliament was tabled earlier today.  It will debated tonight and faces a vote on Wednesday.  If approved, the resolution marks a major development in the fight over ACTA transparency.  It calls for public access to negotiation texts and rules out further confidential negotiations.  Moreover, the EP wants a ban on imposing a three-strikes model, assurances that ACTA will not result in personal searchers at the border, and an ACTA impact assessment on fundamental rights and data protection.  The full resolution:


The European Parliament,
–     having regard to Articles 207 and 218 TFEU
-    having regard to its Resolution of 9 February 2010 on a "Renewed Framework Agreement between the Parliament and the Commission for the next legislative term" (B7-0091/2010)
–     having regard to its Resolution of 11 March 2009 on "Public access to European Parliament, Council and Commission documents (recast)" to be considered as Parliaments position in First Reading  (COM(2008)0229 – C6-0184/2008 – 2008/0090(COD))
–     having regard to its Resolution of 18 December 2008 on "the impact of counterfeiting on international trade" (2008/2133(INI))
-    having regard to the Opinion of the European Data Protection Supervisor of 22 February 2010 on "the current negotiations by the European Union of an Anti-Counterfeiting Trade Agreement (ACTA)"
-    having regard to the Charter of Fundamental Rights of the European Union, and in particular its Article 8,
-    having regard to Directive 2002/58/EC of European Parliament and Council concerning the processing of personal data and the protection of privacy in the electronic communications sector, as last amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009
-    having regard to Directive 2000/31/EC of European Parliament and Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on Electronic Commerce)
-    having regard to Rule 110 of its Rules of Procedure,

A.    whereas in 2008 the European Union and other OECD countries opened negotiations on a new plurilateral agreement designed to strengthen the enforcement of Intellectual Property Rights (IPRs) and combat counterfeiting and piracy (Anti-Counterfeiting Trade Agreement - ACTA), and jointly agreed on a confidentiality clause,

B.    whereas in its report of 11 March 2009 Parliament called on the Commission to "immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available",

C.    whereas the Commission on 27 January 2010 assured its commitment to a reinforced association with Parliament in the terms of its Resolution of 9 February 2010 on a renewed Framework Agreement with the Commission, demanding "immediate and full information at every stage of negotiations on international agreements, in particular on trade matters and other negotiations involving the consent procedure, to give full effect to Article 218 TFEU",

D.    whereas Council representatives have attended ACTA negotiation rounds alongside with Commission representatives,

E.    whereas the Commission as guardian of the Treaties is obliged to uphold the acquis communitaire when negotiating international agreements affecting legislation in the EU,

F.    whereas, according to documents leaked, the ACTA negotiations touch, among others, on pending EU legislation regarding the enforcement of IPRs (COD/2005/0127, Criminal measures aimed at assuring the enforcement of intellectual property rights, (IPRED-II)) and the so-called "Telecom Package", and on existing EU legislation regarding E-Commerce and data protection,

G.    whereas the ongoing EU efforts to harmonise IPR enforcement measures should not be circumvented by trade negotiations which are outside the scope of the normal EU decision-making processes,

H.    whereas it is crucial to ensure that the development of IPR enforcement measures is accomplished in a manner that does not impede innovation or competition, undermine IPR limitations and personal data protection, restrict the free flow of information, or unduly burden legitimate trade,

I.     whereas any agreement reached by the European Union on ACTA must comply with the legal obligations imposed on the EU with respect to privacy and data protection law, as notably set forth in Directive 95/46/EC, in Directive 2002/58/EC and in the jurisprudence of the European Court of Human Rights and of the Court of Justice,

J.    whereas the Treaty of Lisbon is in force since 1 December 2009,

K.    whereas as a result of the entry into force of the Lisbon Treaty, the Parliament will have to give its consent to the ACTA Treaty text, prior to its entry into force in the EU,

L.    whereas the Commission committed itself to provide immediate and full information to the European Parliament at every stage of negotiations on international agreements,

1.    Reminds that the Commission has since the 1 December 2009 the legal obligation to immediately and fully inform the European Parliament at all stages of international negotiations;

2.    Expresses its concern over the lack of a transparent process in the conduct of the ACTA negotiations which contradicts the letter and the spirit of the TFEU; is deeply concerned that no legal base has been established before the start of the ACTA negotiations and that no parliamentary approval has been asked for the mandate;

3.    Calls on the Commission and Council to grant public and parliamentary access to ACTA negotiation texts and summaries in accordance with the Treaty and the Regulation 1049/2001 on Public Access to Documents;

4.    Calls on the Commission and Council to pro-actively engage with ACTA partners to rule out any further negotiations of an a piori confidential nature and to timely and entirely inform Parliament about its initiatives in this regard; expects the Commission to make proposals already prior to the next negotiation round in New Zealand in April 2010 and to demand that the issue of transparency is put on the agenda of that meeting, and to refer to Parliament the outcome of this round immediately after its conclusion;

5.    Stresses that, unless the Parliament is immediately and fully informed at all stages of the negotiations, Parliament reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives;

6.    Calls on the Commission to conduct an impact assessment of ACTA's implementation on fundamental rights and data protection, on the ongoing EU efforts to harmonise IPR enforcement measures, and on E-Commerce, prior to any EU agreement to a consolidated ACTA treaty text, and to timely consult with Parliament about the results of this assessment;

7.    Welcomes affirmations by the Commission that any ACTA agreement will be limited to the enforcement of existing IPRs, with no prejudice for the development of substantive IP law in the European Union;

8.    Calls on the Commission to continue the negotiations on ACTA in order to improve the effectiveness of the IPR enforcement system against counterfeiting;

9.    Urges the Commission to ensure that the enforcement of ACTA provisions - especially its provisions on copyright enforcement procedures in the digital environment - are fully in line with the acquis communitaire; demands that no personal search is undertaken at the EU borders and requests full clarification of any clauses that would allow for warrantless searches and confiscation of information storage devices, such as laptops, cell phones and MP3 players, by border and customs authorities;

10.    Considers that in order to respect fundamental rights such as freedom of expression and the right to privacy, with full respect for subsidiarity, the proposed Agreement must refrain from imposing any so called "three strikes" procedures, in full respect of the decision of Parliament on article 1.1b in the (amending) Directive 2009/140/EC that calls to insert a new para 3 a to article 1 Directive 2002/21/EC on the matter of  "three strikes"

11.    Emphasizes that privacy and data protection are core values of the European Union, recognised in Article 8 ECHR and Articles 7 and 8 of the EU Charter of Fundamental Rights, which must be respected in all the policies and rules adopted by the EU pursuant to Article 16 of the TFEU;

12.    Instructs its President to forward this resolution to the Commission, the Council and the Governments and Parliaments of ACTA negotiation participants.