Insidious trade agreements afoot
This is a bit of a long post. So here’s a summary:
Intellectual property rights today are largely regulated by international trade agreements. International trade agreements are negotiated under secrecy. The most known example so far is ACTA, which might turn out to be extremely detailed while leaving no room for public debate over the content at all – since the content is unknown! However, this has and is already happening. Trade agreements are being negotiated and have been signed that are extremely detailed, and it’s happening with no public debate. It’s Christmas for people that feel inclined to like repressive legislation enough make it permanent beyond repair, and the following rather lengthy text describes, I hope, why.
We’ve been looking into trade agreements lately. It started out with ACTA, some time last year, but as noted by FFII there’s a trade agreement between the European Communities and South Korea which was signed by all parties last year in October. That trade agreement will still have to be approved by the European Parliament, and this hasn’t happened yet. Reading the analysis of of the treaty, it would appear that it’s very desirable that it doesn’t pass.
An even more recent analysis of the Korea agreement shows that it’s a direct copy of already existing legislation in the European Union. Cross-referencing with several of the more important telecommunications and IPR directives from the 21st century, it’s been found that the Korea agreement contains large portions of the E-Commerce Directive. The Korea agreement is, alas, also very similar to the recently leaked IP chapter of a ”comprehensive” agreement with Canada.
And the Canada agreement contains most of IPRED1. So does the Korea agreement, btw.
What does it mean putting copy-pasted material from existing legislation into an agreement? Well, it means that the copy-pasted material is suddenly very permanent. The Korea agreement was negotiated over two years, which is very fast for a trade agreement. As a comparison, we could mention the Economic Partnership Agreements negotiated with African, Caribbean and Pacific nations, all of which have taken 10 years or more. Most of them are even not concluded yet. They are beginning the ninth year of negotiations for new treaties in the World Trade Organisation. So far they have preliminary inputs for drafts. In the World Intellectual Property Organisation they’ve been working on a development agenda for the past 6 years – there is only recently talk of it perhaps taking too much time.
In the case of Korea though, my assumption is that the negotiations went fast because it was a bilateral negotiations. That is: only two parties were involved and one of them was vastly superior in economic power (EU) than the other (Korea). Bilateral negotiations tend to work in the way that the stronger party dictates, and the weaker party follows.
Essentially, we can no longer change European legislation for the better. At least not the parts of it spelled IPRED1, Infosoc, Rental and E-Commerce. In fact, it’s probably going to be a mess changing either of those directives over all, because the agreements are now so specific about the provisions it’s going to take a lot of legal tweaking to make sure our updated legislation does not conflict with our previous (in general, you update legislation when you find out there’s something wrong with the previous legislation – it insinuates a conflict which now can’t be resolved easily).
Obviously, it makes you want to draw the conclusion that copy-pasted texts should not exist in trade agreements. But we were told that it’s already established that trade agreements can and should contain copy-pasted texts from legislation. The precedent is an agreement with CARIFORUM, the Caribbean states party to Economic Partnership Agreement negotiations. It was concluded in 2008 and the parliament ”assented” (=approved) of the agreement in spring of 2009.
It would appear the Council did not yet approve this agreement in the first reading, although the parliament did in spring 2009. It would appear to be formality, but a document called ”17734/09″ that’s not available via the Consilium (probably classified) suggests there’s a slight hope the Lisbon treaty could stop such formality. If not, we’re basically stuck with an agreement that locks up our legislation.
This is bad.
The fact that it’s happened without anyone noticing or without a proper public debate seems even worse. It’s not only legally impractical, but also unjust to extensively limit the powers of democratically elected institutions to choose what legislation to implement. As far as I can see, it creates a rigid system around a technology (ICT) that changes faster than lightening. It cuts off all ability to alter legislation in a way that is more and more desired by debaters from academia and from the industry, and mostly by the people. How can this happen?
Well, trade negotiations are held in secrecy by custom, so it’s not like there was readily accessible information on that they were happening at all. Perhaps a couple of classified documents in the Consilium’s databases.
And the text included in these treaties have obviously been approved by the parliament at an earlier date. IPRED1 was accepted by Parliament in 2004, for instance. The E-Commerce directive is from 2000. So they belong to the ”acquis”, or current legislation.
But here is where Korea and Canada become interesting: they don’t actually copy only the e-commerce directive. They appear to have an extra article inserted in conjunction with the articles on ”intermediary liability” (essentially, whether or not an internet service provider is responsible for copyright infringing traffic). Korea art 10.62 and Canada art 29.1 do not have a corresponding text in conjunction with E-Commerce art 12. The agreements may be expanding the acquis, or creating a space for interpreting the current legislation that wasn’t there in the first place. It’s not good at all.
The corresponding article in the CARIFORUM agreement is art 120, which states only that ”the parties shall maintain a dialogue [on liability]” rather than ”[intermediaries are only not liable in so far as they are] in no way involved with the information transmitted”.
It’s difficult to know what to make of this. Instinctively I feel exporting legislation is very wrong and that it’s undemocratic seen also from a European perspective. So we need to find out if this has happened before, and if so, to what extent. Given that it’s questionable whether the Korea agreement creates new legislation or not, the parliament has to turn it down later this spring. Next week, the European Parliament are in Strasbourg and will question the Commission on the impacts of the Korea agreement. As far as I can see, the agreement needs to be turned down regardless of what the Commission says.
For a while, I thought that case law on art 12(3) of the E-Commerce directive might have been able to clarify how large of a threat art 10.62 and 29.1 may have been. Especially since art 120 CARIFORUM already establishes the legislation permanently.
Since there is no way of telling how or when the approving of the Korea agreement will be on the agenda, it’s difficult to know what time frame we have to stop it. The next Strasbourg sitting is in five weeks. Is it then?
The only indication we have is the CARIFORUM agreement, which appears to have been concluded in October 2008 and approved by the parliament in March. The questions on the Korea agreement are put forward by the conservative, socialist and liberal groups. Does this mean they’re skeptical? If they are, they have a large majority for turning the agreement down.
There’s obviously nine circles of hell, but we can safely assume that the offending article wont be removed. That would require reopening the negotiations. However, the parliament now has a chance to also take a stance against export of legislation. And most importantly, we do. It’s not okay to put law in trade agreements, because it’s too far detached from democratic processes. It’s not okay.