29 Mar 2012 by admin.

I am standing for election to the Open Rights Group (ORG) Board. I hope to offer experience, knowledge and commitment.

I work in the information technology business and came to ORG via the Open Source and Software Freedom campaigns. I submitted personal evidence to the Government consultation on peer to peer file sharing in 2009, started following the ORG shortly after

I believe the campaigning priorities in the UK are to do what we can to stop ACTA, pass the Hargreaves Review recommendations and Repeal the Digital Economy Act. I have been writing here on this blog on a number of issues on the digital economy, copyright reform and digital citizenship rights. I believe we need a broader conversation with the people of this country and have tried to move beyond the Civil Liberty arguments, to understand and articulate the economics of scarcity, plenty and free and am now on a journey towards the privacy arguments. I don’t know about you, but I am a knowledge worker, and I “bill for time”; if I don’t work, I don’t get paid and I don’t see why others should! The privacy arguments are also important, and I suspect that, the argument that,

an English (wo)man’s home is their castle

will also have resonance. We shouldn’t criminalise our children, we shouldn’t privatise copyright law enforcement and we shouldn;t let industrial content break our privacy laws.

I am a Labour Party member and also a member of the GMB; although I am standing as an individual. I represent neither of these organisations. I just believe that without a conversation with the Trade Unions, their members, and the Labour Party, we, as digital liberty campaigners, are unlikely to win.

I have public policy experience, a long time ago I worked in the Civil Service, and more recently sat on the EU’s NESSI steering committee, an industry NGO advising the commission on the R&D budget and acting as an incubator for internet research projects.

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13 Mar 2012 by Dave.

Red Sin Censura, published an Internet in Danger page the other day, which pointed me at Le Monde’s “What’s wrong with ACTA”. This has been worrying me, since much of the opposition has been based solely on secrecy, although this bleeds into democratic oversight. Since the treaty has been negotiated primarily between democracies and their politicians and public servants, to me secrecy alone is not sufficient to win broad support to opposition to the proposed treaty; there’s a lot of people that trust their politicians.

However, between Red Sin Censura and the Le Monde article, I’d say there’s a lot more ammunition and reason to oppose the EU and member states signing the ACTA treaty. The remainder of this article, precises the L’Monde article, which points out that ACTA is an international trade agreement,

• negotiated outside the world trade agreement infrastructure, deliberately because the developing country agenda differs and diverges from monopoly capitalism, and they, i.e. the developing countries,  have a majority in the UN infrastructure, and were excluded from the negotiating table
• in which the copyright corporations were on the inside track and ACTA embeds their privilege, it’s the pursuit of these privileges that required the negotiations to be secret; these privileges include the right to determine infringer’s penalties,the right to determine the ‘loss’, and the prohibition and constraining  of ISP safe harbour defences, all extend copyright privilidge.
• which creates its own maintenance infrastructure. Treaties constrain national sovereignty, ACTA signatories will find it very hard to change their mind.
• which is unlikely to be signed by either its authors (the USA) nor its main targets (the BRIC countries), so why the hell should we sign it.

The Le Monde article argues that,

“ACTA is an attempt to bypass multilateral institutions”.

The article looks at the role of the World Trade Organisation and the World Intellectual Property Organisation, both United Nations NGOs, that until the launch of the ACTA negotiations were the centre of international agreements on intellectual property law. The push for ACTA was started three weeks after WIPO announced its “Development Agenda”, which recognises the complexity of balancing the interests of the world’s citizens and participants in intellectual property markets and possibly made it much easier for NGO accreditation. According to Le Monde, the WIPO recognised the fundamental human rights interests in the debate around intellectual property law. Copyright holders wanted to focus on enforcement, developing economy governments and the WIPO wanted to focus on definition. Having lost in the UN, copyright holders and their agents, the US Trade Representative, started an initiative to get what they wanted.

“Negotiations were a secret to the general public, while corporations were well informed”.

More than this, major efforts were made to avoid democratic scrutiny and the citizen’s participation utilizing the sort of tactics that those used to the factional politics of the 70/80’s student movement will easily recognise. This stupidity is the reason why in the EU, further democratic scrutiny in the European Parliament is legitimate and essential.

“Developing Countries were excluded from negotiations, even though they are the target of the new norms.”

Le Monde speaks about the UN’s Right to Development and ACTA’s sponsors’ and negotiators’ flagrant disregard of the interests of the developing world. I suggest their response is almost certainly to be to refuse to sign up to the treaty. Glyn Moody reports on the likelihood of China & India signing in his techdirt article, “Why The Chances of China Joining ACTA Or TPP Are Practically Zero”.

“The ACTA norms are restrictive, unfair, and undermine or eliminate flexibilities in intellectual property laws that are needed to protect the public interest”.

Let’s hope so, the ECJ will strike it down. It copies the right holder’s global initiative of giving themselves enhanced rights in the enforcement arena, for instance defining the loss caused by piracy as that stated by the rights holder. Furthermore Le Monde states that,

“Right holders are given asymmetric rights as regards discovery against real or merely alleged infringers.”

and also places constraints on law makers in protecting the rights of internet service providers, and new entrants to the internet services markets. It provides for preferential treatment of rights holders, and even choice in the selection of remedies, it prohibits Governments from protecting even in a limited way, the rights of the online service providers. ACTA also allows for rights holders to have the last word on the loss caused by infringing activity i.e. the monopoly price charged by the rights holder. This is chilling stuff, I strongly recommend you read it. [Here], you’ll need to scroll down.

“ACTA makes it more difficult to implement liability rules, in cases where the public should have more freedom to use protected goods.”

Le Monde’s words, to expose the increasing restriction on the use of orphaned works and the ongoing “enclosure”. Knowledge Ecology International have issued a briefing on ACTA, Orphaned Works and Damages. The problem that creates orphaned works is that copyright is “strict” and no longer requires to be declared. Thus content is copyrighted by default, and strict liability means that its use is prohibited without rightsholders’ agreement. If the rightsholder cannot be identified, then the content can’t be legally used. You can imagine; ACTA requires both damages to increase, and that all legal fees are to be borne by infringers; innovators won’t take the risk. Most attempts to solve the orphan works problem have involved weakening strictness and reducing damages.

“The secret process that created ACTA sought to establish a new captured institution that will advance right holder interests through both hard and soft norms.”

To me the drop dead reason for refusing to sign. Any amendment, becomes virtually impossible. What this means is that there will be a non democratic organisation that determines the changes permitted, and no MP’s, no MEPs, no EU Commissioners, no elected officials will be able to influence the future of world wide intellectual property law. Copyright maximalists want everything, and the want it for ever.

“The United States does not consider itself bound by ACTA, but will seek to impose ACTA on developing countries.”

If India, China, Brazil aren’t signing the treaty, and the USA aren’t signing, why should the EU and its member states do so? Even more important, why sign first?

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02 Feb 2012 by Dave.

And on to the EU’s attempt to implement strong copyright enforcement. I’ll return to the UK in the next week or so, but the European Commission signed the Anti-Counterfeiting Trade Agreement (ACTA) a couple of days ago. This proposed trade treaty has been negotiated in secret amongst a group of governments from the developed world. The US agenda was to strengthen international enforcement of intellectual property laws, and the original European agenda was similar, but orientated more around the protection of a number of geographic brands, such as champagne or cheddar. The Open Rights Group talks, on their blog, about the secrecy and how we have came to this point.

La Quadrature Du Net, a french based digtal liberty campaign, argue in their blog posting, that ACTA will have a chilling effect on ISP and Search providers forcing them to police their users and inhibit their business. LQDN say,

“By putting legal and monetary pressure on Internet service providers (in a most subtler way than in previous versions of the text), ACTA will give the music and movie industries a weapon to force them to police their networks and users themselves. Such a private police and justice of the Net is incompatible with democratic imperatives and represent a real threat for fundamental freedoms.”

It also proposes increasing criminal sanctions for commercial scale infringement. This is definitely not the same as commercial activity and it also reinserts the criminalisation on aiding and abetting which industrial content have been trying to criminalise for the last five years, and seems to weaken all the national copyright exclusions. The treaty has self maintenance clauses, which have no citizenship accountability. It’s been negotiated and written by bureaucrats and lobbyists and having got (some of) the law they want they don’t want any pesky elected politicians looking to change and update it; they see that as their prerogative.

La Quadrature Du Net have published a call to arms for Europe’s citizens to campaign to have the treaty rejected  by the European Parliament. (They also have a campaign Wiki here.)

To further understand what’s happening, check out this article, entitled “Why the EU will repent ACTA at their leisure” published on a blog called Br0ken Teleph0n3, which was pointed out to me by Glyn Moody. In it, the author, Ian Grant, makes some startling predictions illustrating the weakness of the treaty for Europe’s citizens.

• There has been no parliamentary scrutiny to determine if the treaty conflicts with the current state of European law. No-one knows if it conflicts or not. (See my, or others, review of the last UK judgement determining if strong copyright enforcement conflicted with EU law or not, it shows there’s a lot of law to contradict.)
• The European Parliament’s technical assessment recommends postponing the signing of ACTA, that there is little benefit to the EU’s citizens. The rejection of this recommendation has led to the resignation of the EU Parliament’s Rapporteur. Interestingly, five EU member states have opted out of the signing process. (How’s that work?) For the record, they’re Germany, the Netherlands, Estonia, Cyprus and Slovakia.
• It seems doubtful that the US Senate will be asked to, or consent to ratification.
• India, China and Brazil have not been asked to, and are unlikely to agree to the treaty.
• As discussed above, the penalties for copyright infringement are likely to be increased. There is no embedding of copyright exclusions, for research, education or personal use in the treaty.

We seem to be on the path to agree a treaty in the economic interests of US entertainment and industrial software companies, where Europe’s competitors will not, and we give up many fundamental freedoms for the privildge.

I shall be writing to my MEPs this evening. I suggest you look at some of these links and think about this as well.

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