Digital Economy Act & the ACTA – it stinks of rotten fish

Scandinavian blogger Sköne Oke informs us of the following:

1. The Fish mandate (“SEC(2007) 1377″): The European Commission sent a draft recommendation to the Council to authorize the Commission to negotiate ACTA. Yes, they wrote their own negotiating directive. The infamous “Article 133 group” had it on their agenda, (the Commission was forced to provide a new proposal for a negotiating mandate cmp 2.)), then the Presidency presented a “compromise” which was rubberstamped by the Art 133 group, Coreper-2 and finally adopted via the Fisheries Council without discussions (14 April 2008).

2. The Commission was forced to present a revised recommendation for the negotiations mandate of ACTA (“SEC(2008) 255″). The Council reveals:

To obtain the Council’s agreement for the negotiation by the Commission of an agreement to improve the enforcement of intellectual property rights. This is a revised version of the negotiating guidelines adopted [by the Commission?] as SEC(2007) 1377, on 23 October 2007. Since the adoption of the recommendation, Member States asked the Commission to revise three aspects. The negotiation process with other ACTA partners has started and, until it has received its negotiating guidelines, the Commission services are participating in “silent mode”

4. Negotiating directives are kept secret, all the adopted versions and the drafts. Ironically a final SEC(2007)1377 final is dated 7.8.2008 and SEC(2008) 255 final 21.8.2008

5. Disclosed is currently only the explanatory memorandum of these documents, here is the diff:

“ACTA’s enforcement measures will apply, at least to those IP rights covered by Part III (Enforcement of IPR) of the TRIPs Agreement. However, it is not foreseen to include in the scope of ACTA any rules regarding the substantive protection of intellectual property rights.”

It lacks legal clarity because PART III of TRIPS does not define any rights.

6. Judging from the linguistic evidence the negotiating mandate was probably drafted by a Spanish national.

7. As the document was channeled via the Article 133 committee, that article of the treaties seems to be the relevant legal base, fishy again. Here the Nice Treaty version, of course the Lisbon treaty changed the situation, here it is Article 207 TEU.

8. The explanatory memorandum is a bit “freaky”, e.g.

“It is important for the European Union to be at the forefront of efforts to improve IPR enforcement and to work with other partners to make them as effective as possible. It would be politically damaging to do otherwise. Joining the ACTA negotiating process will send a strong message of our concern for the key competitiveness tool that is IPR. But, more importantly, it will have positive effects on the situation in the field, resulting from the increased level of cooperation between enforcement authorities and from the harmonised high standards of IPR enforcement.

…without effective means of enforcing intellectual property rights, innovation and creativity are discouraged and investment diminished. It is therefore necessary to ensure that the substantive law on intellectual property, which is nowadays largely part of the acquis communautaire, is applied and enforced effectively internationally.

Here comes the technical problem: when external enforcement of territorial rights was the core objective how does it work technically? Time to dig into Article 207 TEU and related provisions.

In terms of how this will affect the UK, parliamentarians have just rushed and rammed through the Digital Economy Act, a heinous piece of legislation saved until the dying moments of the last parliament to avoid debate, which can now just be amended at will using Statutory Instruments with virtually no scrutiny to accommodate the expected EU Regulations detailing the final outcomes of the secret ACTA negotiations.

It is clear that both the Digital Economy Act and the ACTA draft were written by industry lobbyists, so it a one way street where the public gets shafted again. It is naked corporatism by any definition, and as such will not be changed or repealed by an incoming Conservative administration.

They say that a fish rots from the head down, and using such underhand methods as outlined above using the Fisheries Council just about proves the point.

About IanPJ

Ian Parker-Joseph, former Leader of the Libertarian Party UK, who currently heads PDPS Internet Hosting and the Personal Deed Poll Services company, has been an IT industry professional for over 20 years, providing Business Consulting, Programme and Project Management, specialising in the recovery of Projects that have failed in a process driven world. Ian’s experience is not limited to the UK, and he has successfully delivered projects in the Middle East, Africa, US, Russia, Poland, France and Germany. Working within different cultures, Ian has occupied high profile roles within multi-nationals such as Nortel and Cable & Wireless. These experiences have given Ian an excellent insight into world events, and the way that they can shape our own national future. His extensive overseas experiences have made him all too aware of how the UK interacts with its near neighbours, its place in the Commonwealth, and how our nation fits into the wider world. He is determined to rebuild many of the friendships and commercial relationships with other nations that have been sadly neglected over the years, and would like to see greater energy and food security in these countries, for the benefit of all. Ian is a vocal advocate of small government, individual freedom, low taxation and a minimum of regulation. Ian believes deeply and passionately in freedom and independence in all areas of life, and is now bringing his professional experiences to bear in the world of politics.
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2 Responses to Digital Economy Act & the ACTA – it stinks of rotten fish

  1. jameshigham says:

    Underhand methods, yes and roundabout as well.

  2. Vanessa says:

    The Lib Dems have committed themselves to repealing the Digital Economy Act.

    Since writing to my MP (several times), signing the petitions, and donating the 38Degrees ad campaign all proved fruitless, I have decided to boycott the companies behind the DEB and ACTA:

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