Archive for February 2012

What is so wrong with ACTA?

Let me begin by stating that I am not well-versed in intellectual property or copyright law. Not at all, in fact, save for a brief introduction on the subject during my commercial law lectures way back in my second year of studies (which only dealt with unfair practises concerning trademarks) and a minor credit on Intellectual Property in my fifth year. In this light I can never claim to be an authority on the subject or that I shall be imparting words of wisdom. Pity that there are some who believe that they are so high and mighty and infallible that content themselves by inflating their egos and pouring scorn and ridicule upon those who disagree with their opinions. What I intend to do in this piece is to briefly pour over the main criticisms being levelled at ACTA and questioning their validity. It's going to be a long one but I am going to try to avoid the nitty-gritty of complex and technical legal jargon. 

1: ACTA was conducted and negotiated in secrecy - an affront to transparency and open public scrutiny

Back in 2009 a worldwide coalition of 'Non-Governmental Organizations, consumers unions and online service providers associations' published an open letter to the European Institutions condemning the effect that ACTA will have on innovation as well as the secrecy of the negotiations. They contend that:
The negotiation process itself raises important questions of transparency and due democratic process, given that the content of the draft agreement has been kept secret for more than 18 months, although some details about the proposals recently leaked to the public. More worrying still, while the European Parliament has been denied access to the documents, US industry has been granted access to them, albeit only after signing non-disclosure agreements.
For reasons of efficiency, it is only natural that intergovernmental negotiations dealing with issues that have an economic impact, do not take place in public and that negotiators are bound by a certain level of discretion. However, there has never been any intention to hide the fact that negotiations took place, or to conceal the ultimate objectives of the negotiations, the positions taken in the negotiations or even details on when and where these negotiations are taking place.
Fair enough. But it is also true that back in 2006 the very same European Commission issued a Green Paper called 'The European Transparency Initiative'  which stressed the importance of a “high level of transparency” to ensure that the Union is “open to public scrutiny and accountable for its work”. The Commission believed (at the time, perhaps) that 'high standards of transparency are part of the legitimacy of any modern administration. The European public is entitled to expect efficient, accountable and service-minded public institutions and that the power and resources entrusted to political and public bodies are handled with care and never abused for personal gain.' More importantly, it stressed that:
When lobby groups seek to contribute to EU policy development, it must be clear to the general public which input they provide to the European institutions. It must also be clear who they represent, what their mission is and how they are funded.
The question begs an answer: why is it that the political will for greater transparency, established in 2006, was not reflected later on in the negotiations concerning ACTA? The situation is all the more damning when the European Council accepted the ACTA treaty during a meeting which was concerned with Agriculture and Fisheries on the 16th of December 2011. put it bluntly by stating that by:
continuing the tradition of denying European citizens any opportunity to offer their views on ACTA, the Council of national ministers employed the shabby trick of pushing the treaty through by adopting it without debate at a meeting whose main business had nothing to do with international trade.
This tradition, it seems, was employed in Malta and other Member States. Like a bolt from the blue, on 26 January 2012 we got to know that Malta signed the 'controversial' ACTA treaty without a single shred of prior knowledge or public debate. In fact, the French MEP Kader Arif who acted as the European Parliament's rapporteur on the ACTA treaty resigned, describing the negotiations as a 'masquerade'. The latter went on to issue a strong-worded statement: 
I condemn the whole process which led to the signature of this agreement: no consultation of the civil society, lack of transparency since the beginning of negotiations, repeated delays of the signature of the text without any explanation given, reject of Parliament's recommendations as given in several resolutions of our assembly.
Verdict: This criticism is well-founded. This veil of secrecy is almost reason enough to make the case that there is something rotten about this treaty.  It brings to the fore the perception, if not the factual truth, that there are certain vested interests in keeping this treaty hush-hush. Which leaves asking: why?

2: ACTA will allow authorities to police the internet and criminalises the sharing of free knowledge and the small fish who download songs or movies - a threat to fundamental rights and privacy (Chapter II, Section 5 ACTA)

The main criticism being levelled at the time (2008) was that ACTA 'creates a culture of surveillance and suspicion, in which the freedom that is required to produce free software is seen as dangerous and threatening rather than creative, innovative, and exciting.' Moreover, it was held that the treaty:

...profoundly restrict the fundamental rights and freedoms of European citizens, most notably the freedom of expression and communication privacy. These are very much at risk, since the current draft pushes for the implementation of three-strikes schemes and content filtering policies by seeking to impose civil and criminal liability on technical intermediaries such as internet service providers. 
One commentator argued (in 2008) that:
ACTA would create unduly harsh legal standards that do not reflect contemporary principles of democratic government, free market exchange, or civil liberties. Even though the precise terms of ACTA remain undecided, the negotiants' preliminary documents reveal many troubling aspects of the proposed agreement. For example, ACTA advocates intend to further criminalize non-commercial copyright and trademark infringements. They also aim to reinforce so-called “Digital Rights Management” (DRM) technologies that currently prevent the personal, legal reproduction of optical discs like DVDs and trample on “fair use” rights. In addition, rights owner lobby groups want the agreement to undermine legal safeguards that protect Internet Service Providers (ISPs) from liability for the actions of their subscribers. It would also facilitate privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process.
Nonetheless, many of the most significant and dangerous provisions of ACTA have now been watered down. Nate Anderson (Forbes) points out the following changes as follows:
  • The provision that proposed to criminally punish ordinary users (think college kid downloading music) with fines, jail time, seizure of computers, etc., was significantly scaled back as the negotiation process moved on and finally eliminated in the final text.
  • The provision that required all ACTA countries to hold third parties, such as ISPs and consumer electronics manufacturers, liable for their customers’ infringement was eliminated. This provision, as drafted, was inconsistent with U.S. law and would have required changes to this complex and evolving policy space.
  • The provision that required countries to institute safe harbors for ISPs from their customer’s infringement was eliminated. While the idea of providing ISPs with a safe harbor is a good one and facilitates the development of platforms and services on the Internet, the way in which ACTA would have required these safe harbors was not good. It lacked safe guards for users that are contained in U.S. law. Further, it could have provided the excuse for measures such as three strikes and deep packet inspection.
  • The DRM provisions of ACTA were improved significantly. Earlier leaked drafts had called upon countries to prevent circumvention of DRM, treat them as both civil and criminal offenses, and consider them illegal even when there was no underlying attempt to infringe copyright. Furthermore, these drafts had not acknowledged that circumvention could be done for lawful purposes. The final text overcomes these deficiencies and gives countries flexibility in how they implement DRM provisions.
It has been noted by Timothy B Lee  (Ars Technica) that many of the claims made against against ACTA are either outdated or unfounded. For instance, the claim that "ACTA gives [ISPs] the power—or more accurately forces them—to monitor all your packets, all the time" is no longer accurate. Nonetheless, the site goes on to maintain that 'None of this is to say ACTA is positive. It isn't. It has both procedural and substantive problems—and critics need to attack it on the right grounds.' For starters, it reiterates the secrecy criticism above-described: 
ACTA was negotiated in extreme secrecy by a small group of wealthy nations. As leaked documents make clear, the explicit goal of this approach was to bypass existing international instituions like WIPO where other countries might object to even stricter IP enforcement. Instead, ACTA was a "coalition of the willing" which "would aim to set a 'gold standard' for IPR [intellectual property rights] enforcement among a small number of like-minded countries, and which other countries might aspire to join."
Another existing problem is that 'the treaty requires signatories to adopt anti-circumvention rules...and a regime of statutory damages like the one that produced a $1.5 million judgment against Jammie Thomas-Rasset for infringing 24 songs.' Trusty Wikipedia explains that 'Anti-circumvention refers to laws which prohibit the circumvention of technological barriers for using a digital good in certain ways which the rightsholders do not wish to allow. The requirement for anti-circumvention laws was globalized in 1996 with the creation of the WIPO Copyright Treaty.' In other words anti-circumvention prevents you from jail-breaking your PS3 or iPhone for it to be able to play copyrighted material or to allow software and file formats for which it was not made. Indeed, I can not find a morally sound argument as to why jailbreaking should be allowed other than, perhaps, that one should do as he pleases with the property he has legitimately purchased. However, people far wiser than me have made the argument that anti-circumvention measures have an impeding effect on science and innovation
Scientists who study encryption or computer security or otherwise reverse engineer technical measures, who make tools enabling them to do this work, and who report the results of their research face new risks of legal liability because of recently adopted rules prohibiting the circumvention of technical measures and manufacture or distribution of circumvention tools. Because all data in digital form can be technically protected, the impact of these rules goes far beyond encryption and computer security research. The scientific community must recognize the harms these rules pose and provide guidance about how to improve the anticircumvention rules.
Furthermore, Lee continues, 'ACTA establishes a new, higher minimum of copyright protections and enforcement that countries must provide, but it doesn't require countries to preserve mechanisms like fair use and intermediary immunity that protect intellectual freedom.' We have recently learned that government intends to establish new 'legislation to strengthen citizen’s rights to information and expression through internet'. However, the argument goes that If 'Congress (Parliament in our case) ever decides that IP rights have swung too far in one direction, it can always rebalance them by changing the law, right? Not exactly. International agreements like ACTA bind the hands of legislators unless the US is willing to withdraw from them first.' The argument is, therefore, that once this treaty becomes binding on the signatories nothing much can be done to counteract its provisions. 

Verdict: A cautious criticism is well-founded but on the wrong reasons. In its current format it does not appear to have a far-reaching detrimental effect on internet freedom but it remains vague. Moreover, we can never be so sure what effect this treaty will have on internet rights until it's enforcement mechanisms are activated and court interpretations are given. 

3. ACTA criminalises generic medicine (Chapter II, Section 3 ACTA) 

The ACTA treaty will allow national customs authorities to 'act upon their own initiative to suspend the release of suspect goods' but also empowers rights holders to 'request its competent authorities to suspend the release of suspect goods'. According to Kader Arif (MEP) this has a detrimental effect on the transportation to generic medicines (generic versions of patented medication) that are essential for third world countries:
The problem with ACTA is that, by focusing on the fight against violation of intellectual property rights in general, it treats a generic drug just as a counterfeited drug. This means the patent holder can stop the shipping of the drugs to a developing country, seize the cargo and even order the destruction of the drugs as a preventive measure. Generic medicines are not counterfeited medicines; they are not the fake version of a drug; they are a generic version of a drug, produced either because the patent on the original drug has expired, or because a country has to put in place public health policies (source)
In his treatment of the subject, Andrew Rens states that: 
ACTA threatens access to medicines through the indeterminacy of the terms “counterfeit” and “enforcement. Even if these provisions ultimately exclude pharmaceutical patents [which it does in footnote 6 to Section 3]...trademark and copyright claims can still be used to block generic medicines. For example, in 2009 German customs officials seized and held a shipment of the generic drug Amoxicillin, which was being shipped through Germany to a least developed country. The drugs were held for four weeks because German customs officials were confused by the alleged similarity of the generic name Amoxicillin with the GlaxoSmithKlein brand Amoxil. The incident highlights the negative consequences for global health when customs authorities are empowered and required to engage in determinations of IP rights with respect to goods in transit.
Timothy Lee argues, however, that 'at the margin, ACTA might be bad for the flow of generic drugs to poor countries, but it's a huge exaggeration to say that generic drugs would be "banned."' Furthermore, he argues that under the current wording manufacturers of generics could escape punishment if they 'tweak the appearance of their drugs to avoid infringing on trademarks.'

Verdict: Despite the loopholes, ACTA could have very serious consequences on the shipment of generic medicines which are vital for health especially in third world countries. I'm sure the fat cats at Bayer and GlaxoSmithKline had a hand in this. Truly, this could be more devastating than certain policing of the internet.

Concluding remarks

The problem with ACTA is that it shifts the balance between internet freedom and the legitimate interests of rights holders in favour of the latter. The secrecy of the negotiations conducted and the drive by Western nations to entrench its own copyright laws on the rest of the world (SOPA, PIPA thankfully dead and buried and ACTA) at the behest of powerful corporations and lobby groups indicates that this is the case. The danger is a disproportionate piece of legislation that stifles freedom and innovation, whilst criminalising the small players together with the worst infringers. 

I also agree that any resistance to ACTA must be coupled with a call for reform in intellectual property law in general. There is a strong popular resistance to internet regulation in the digitial age. The internet has become an integral and inseparable part of our lives that we cannot be made to live in fear that we could get fined and jailed for the most trivial things such as sharing a song. Moreover, the sharing of art and knowledge is an intrinsic public good that should be respected and enhanced, not stifled and censored. Rights holders should also recognise that the discovery of obscure musical groups or interest in literature or film has increased with internet sharing. I would have never known about certain bands where it not for internet downloading and I would never have bought any of their material. 

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A landmark judgment on freedom of expression and artistic freedom

I do not intend to romanticise or exaggerate the issue but it is my humble opinion that today's Realta judgment represents a significant turning point in Maltese obscenity and morality law; freedom of expression and artistic freedom. If anything, it is the first judgment of it's kind, in Malta, that deals specifically with the nebulous concepts of obscenity and pornography in literature as well as the defence of artistic merit and public good (as found in the Pornography and Obscenity Regulations 1975 - L.N. 80 of 1975). 

The fact of the matter is that our courts, especially the appellate courts, always had a tendency to adopt purely moralist or ethical interpretations of obscenity that are loaded with subjectivity and cut off from contemporary reality. In effect, they served the function of guarantors of the 'nanny state'. Thus we find in judgements such as Il-Pulizija v Domenico Catalogna et (Court of Criminal Appeal, Inferior - 1954), a case that dealt with the public exhibition of a nude painting, that '[c]hi si scusa col dire che egli dipinge il vizio e la dissoluzione, cosi come la trova nella natura e nella societa, dimentica che, per gravi ragioni, la societa esige che di alcune cose non si faccia ostentazione...Perche dovrebbe l'arte alzare quei veli? Quale ragione avrebbe per sottrarsi alle regole comuni?' (quotuing from Cocurullo, L'Oltraggio al Pubblico Pudore mediante Scritti, Disegni ed Oggetti, 1910). Coupled with this one finds various judgments declaring concubinage (cohabitation) as an offence to public morals such as Elsie Demanuele vs Richard Faulkner (First Hall Civil Court - 1988) where the Court said that 'Il-Qorti ma tistax taghti decizjoni li thalli sitwazzjoni ta' konkubinat, ghax din mhux biss tmur kontra l-morali pubblika imma wkoll kontra l-ligi'. The reason I cite these judgments is because they are the very same that the Attorney General used, in his appeal application in Realta, to show that the Court should make pure subjective analyses of obscenity and morals without any recourse to current realities. The prosecution, according to the AG, does not need to show 'the why'; 'the how'; and 'the manner' by which morals are offended. The AG also argued that literature can be deemed obscene even from mere 'purple passages' cited in isolation without any recourse to the dominant character of a story or novel taken as a whole (this is what he tried to do in open Court by reading the 'dirtiest' passages from Li Tkisser Sewwi) nor does he believe that obscene publications should be judged with regard to the likely readers, even if these are mature adults. He also contended that the Court should neither be guided by constitutional principles on free speech, nor should it have any regard to expert witnesses on the matter. 

Until today (and perhaps next week - since we still await the appeal judgment from the Constitutional Court on the Stitching case) little importance was given to certain (limited) court declarations that the concept of morals vary in space and time (certain judgments given by Judge J R Micallef, the names of which I do not know off-handedly, come to mind). The AG tried to give the impression that that which was immoral in 1950 must necessarily remain so in 2012. This is unlike the erudite doctrine of the Italian Court of Cassation which held that ' giudice non deve essere un fustigatore dei costume, un promotore di campagne moralistiche, come la Corte di cassazione ha più volte affermato. Non è questo il compito assegnatogli dalla legge. Come già ricordato, il fondamentale parametro di riferimento per il giudice è il sentimento medio del popolo nel momento storico dato. (Cass., Pen., Sez III 30-10-1996, n. 9685). 

This has changed with the Realta appeal. In essence, the Court of Criminal Appeal confirmed the deliberations of the Court of Magistrates which held that a publication can only be deemed obscene and pornographic if it effectively 'corrupts and depraves' the reader (the English standard of obscenity) by inciting in him or her libidinous thoughts and sexual excitement. This is important for it destroys the concept of 'inherent obscenity': material must have a strong (extraneous) corruptive effect on the mind of the reader for it to be deemed obscene. It held that this effect must be proven, beyond reasonable doubt, by the Prosecution, in cases like these. It also took cognisance of defence counsel's contentions that the story Li Tkisser Sewwi in no way attempted to incite libidinous thoughts or corrupt the minds of ordinary readers; to the contrary the primary motive was to invoke a certain disgust - or anger - at the protagonist, who viewed women as sexual objects and nothing else (an unfortunate reality in the psyche of a fair number of Maltese men and indeed, the male species in general). A narration of such a reality, it said, although shocking, discomforting and not aesthetically pleasing, is neither obscene nor devoid of artistic merit. It agreed with defence counsel's claims that '...l-ghan tal-letteratura m'huwiex biss li titfa dawl fuq dak li huwa sabih fl-umanita' izda huwa anki li tiddipingi u titkellem dwar l-elementi koroh u deplorevoli ta' l-istess socjeta`'. It also made the fundamentally important declaration that '` pubblika hija xi haga li tinbidel biz-zmien u dak li kien joffendi l-morali pubblika ghoxrin jew tletin sena ilu mhux neccessarjament joffendi l-morali pubblika llum u dan minhabba rejaltajiet tal-hajja differenti principalment ir-rejaltajiet li ghalihom giet esposta is-socjeta Maltija permezz tal-mezzi vasti ta' komunikazzjoni moderni.' 

It is for such reasons that the Realta case, now confirmed in appeal, is a landmark judgment for it is a judicial affirmation that (1) art should not be regulated by a paternalist state that decides for adults what they should see, read and hear (in the sense that art must be aesthetically pleasing and inoffensive for it not to interfere); (2) that the artist has every right to shock, offend and challenge current contemporary reflections in society as avante-garde (a fundamental concept in free speech law); and (3) that the concept of morality is not a dogma (static and unchanging in space and time) but must be viewed in accordance with current standards of toleration in society without being detached from emerging realities of the 21st Century. 

Despite the importance of this judgment, this issue should never have gone to Court. In my opinion the main culprit was not the AG (he was, after all, doing his job albeit in a very close-minded manner) but the Rector, Juanito Camilleri. One must recall that it was on his insistence that Mark Camilleri (and, consequently, Alex Vella Gera) be taken to Court. He based his reasoning primarily on two grounds: (1) one that he was not sure what he should do in cases like these and thus wanted guidance from the Court; and (2) because the short story was placed in a journal or newspaper, the reader could easily take it to be a factual account of the author's opinion on such matters (hence the insistence, by the prosecution, on the word 'artiklu' rather than 'storja') rather than a fictitious piece of literature. Since when is the Court a means to solicit legal advice (uffiċju tal-pariri) and since when can university students not distinguish between fact of fiction? Is this the level of intellect that the Rector perceives in students? And who on earth has ever heard of university officials and academics subjecting their own students to a criminal trial for the publication of literature which offends them? This absurdity reached epic proportions and I also call for the Rector's immediate resignation now that he has gotten his answer very clearly. One must also recall how the SDM-led KSU of 2009-2010 was four-square  behind the Rector's actions, despite any declarations to the contrary, for reasons or motives upon which I shall not speculate. I can personally bear witness to this. Kemm għadkhom lura, jaħasra. Ma rrnexilkhomx. 

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