LibertyVoice

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.

"To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it . . ." –Definition of Doublethink from 1984, George Orwell

If mental gymnastics were an Olympic event, the United States would be guaranteed gold. Our prowess at Doublethink is indisputable. The latest example of our mental contortion: (A) Internet Freedom is essential for the protection of basic human rights and (B) Access to the Internet is not a right and may be taken away without due process. At the same time as the United States is trying to increase Internet freedom in Iran, the United States Trade Representative is negotiating a copyright treaty (in secret) that will reduce Internet access both at home and abroad. This will not end well.

Background: Good news. The United States has realized that social networking and Internet access undermine oppressive regimes and encourage democratic ideals. The evidence of this realization? The U.S. Department of the Treasury’s Office of Foreign Assets Control amended various regulations relating to trade with Iran, Sudan, and Cuba.  The amendments

authoriz[e] the exportation of certain personal Internet-based communications services – such as instant messaging, chat and email, and social networking – to Iran, Sudan and Cuba. The amendments also permit the exportation of related software to Iran and Sudan.

"Consistent with the Administration’s deep commitment to the universal rights of all the world’s citizens, the issuance of these general licenses will make it easier for individuals in Iran, Sudan and Cuba to use the Internet to communicate with each other and with the outside world.  Today’s actions will enable Iranian, Sudanese and Cuban citizens to exercise their most basic rights," said Deputy Treasury Secretary Neal Wolin.

. . .

Today’s action follows up on the December 2009 notification submitted to Congress by the State Department of a national interest waiver under the Iran Iraq Arms Non-Proliferation Act to authorize the exportation of free mass market software to Iran necessary for the exchange of personal communications and/or sharing of information over the Internet.” (source)

Great. The United States government wants to increase Internet freedom because maybe it will weaken the Iranian regime. Iranian bloggers have played an enormous role in the reform movement. Ok, makes sense. But this is the same U.S. government that is secretly negotiating the Anti-Counterfeit Trade Agreement, which may decrease Internet access in the name of protecting copyright.

Now the supporters of ACTA have insisted that the agreement would not require countries to adopt a three-strikes Internet ban for users who had been accused of copyright infringement. But leaked ACTA documents suggest that, in order for ISPs to retain their safe harbor status under the proposed system, they must “adopt[] and reasonably implement[] a policy to address the unauthorized storage or transmission of materials protected by copyright or related rights . . . .”  And the ACTA draft provides only one exemplar of a reasonable policy.  "An example of such a policy is providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider’s system or network of repeat infringers."

So yes, ACTA does not mandate that ISPs adopt a three-strikes policy. Instead, the Agreement merely says that ISPs will be open to liability if they do not adopt such a policy or an ill-defined alternative policy. And I’m sure ISPs would love to carry that extra liability instead of arbitrarily cutting off consumers. Brilliant. Our USTR has outsourced the drafting of draconian Internet policies to individual ISPs. I can see the confusing fine print now: “For your protection and for the protection of all our users, we reserve the right to cut your Internet access if you are merely accused of copyright infringement. An early termination fee will be added to your last bill.”

Perhaps the US government does not understand the conflict between these two positions. Let me take a crack at this Gordian Knot. There can be no right to the Internet if a person’s access to the Internet can be destroyed on such a flimsy pretense. Under the ACTA theory of the world, Iran would be justified in blocking all peer-to-peer (P2P) sharing or even social networking, so long as the regime claimed that these digital tools encouraged copyright infringement. The same could hold for Twitter: it could be used for sharing copyrighted lyrics. (Sorry Iran, Japan’s JASRAC got to that logic gem first.)

The misuse of DMCA takedown notices is common knowledge. Does the United States want to craft a universally recognized legal tool for Internet censorship? “We cut [insert name of humanitarian reformer here]’s access to the Internet because she was accused of downloading SpiderMan 3.”

Perhaps if ACTA actually engaged the democratic process (ACTA is an executive agreement and thus does not require Congress’ stamp) this parade of horribles could be avoided.  Let’s follow Europe’s lead, vote down ACTA, and depart from the theater of the absurd. Till then, we will be left to guess which view of the Internet currently occupies our confused consciousness:  Do we still support the Persian Version?

(Andrew Moshirnia is a second-year law student at Harvard Law
School and a CMLP blogger. He thinks prohibition was ill considered but loves the war on drugs.) 

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.

After a month of snarky letter and email exchanges, Republican U.S. Congressional candidate Joe Walsh recently removed a campaign video from his website that used a song by the Eagles band member also named Joe Walsh. Candidate Walsh called the copyright controversy "a distraction" in late January but vowed that he was "not backing down on this." Ultimately, though, he did. 

The campy video features musician and political supporter Joe Cantafio performing his take on the 1971 classic "Walk Away." Cantafio used the same, or substantially similar, music from the song to create “Lead the Way,” an ode to Walsh’s campaign. When Walsh the Rocker found out a Republican used his music as part of a campaign video, an entertaining—though misguided—discussion on copyright law began.

Attorney for Walsh the Rocker, Peter Paterno, began his initial letter by saying that it "might be beneficial" for Walsh the Candidate to freshen up on his copyright knowledge. "You’re not allowed to take someone’s song and change the lyrics," he wrote. "This is not to say you’re not allowed to write silly lyrics, you just have to write them to your own music. Now, I know why you used Joe’s music—it’s undoubtedly because it’s a lot better than any music you or your staff could have written. But that’s the point. Since Joe writes better songs than you do, the Copyright Act rewards him by letting him decide who gets to use the songs he writes."

Candidate Walsh called the song a parody and replied: "I’m writing for myself, Joe Walsh, a Republican Candidate for Congress in Illinois 8th District. You know where that is, don’t you? It’s that wide-open part of the country you fly over on your way from Los Angeles to New York." Realizing the political opportunity now present, Walsh continued, "I hope the Democratic National Committee and Nancy Pelosi didn’t put you up to this. As the frontrunner to take on Nancy’s Democrat Incumbent Melissa Bean this year, I wonder if I’m a threat to a whole bunch of liberal interests here who want to take down a tea party candidate."

Artists have taken issue with the unauthorized use of their music in campaigns for many election cycles now, but the case of the two Walshes is different than most. Unlike other campaigns that used original versions of songs in their entirety, Candidate Walsh turned "Walk Away" into "Lead the Way," changing lyrics from "Seems to me, you just turn your pretty head and walk away" to "Seems to me, Joe Walsh is just the perfect guy to lead the way." There are also references to Bean and Speaker of the House of Representatives Pelosi.

Once informed of Candidate Walsh’s video, Rocker Walsh issued takedown demands to YouTube made possible through provisions in the Digital Millennium Copyright Act, 17 U.S.C. § 512. Candidate Walsh insisted the video is an example of fair use. Because the song features new lyrics, it does stand in contrast to previous high-profile legal bouts between the Foo Fighters and John McCain or Don Henley and Republican Charles DeVore. But the fair use defense in this case is still questionable. 

Courts consider four well-known factors when determining if fair use applies: (1) The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use upon the potential market for or value of the copyrighted work. 

On factor 1, courts do consider parody as an example of fair use like Candidate Walsh suggested. “Lead the Way,” however, probably doesn’t qualify as a parody.  Courts in the copyright sphere have drawn a distinction between parody and satire. A parody pokes fun at the copyrighted work, while satire uses that copyrighted work as a vehicle to comment on something else altogether. Parody, unlike satire, needs to mimic the original to make its point and
can use as much of the copyrighted work as is necessary to do so.  While it is certainly not necessary to create a parody in order to qualify as a fair use, this form of social and literary criticism gets special solicitude from the courts because of the First Amendment values at stake.

The leading case dealing with what qualifies as a parody is Dr. Seuss Enterprises v. Penguin Books, USA, Inc., 109 F.3d 1394 (9th Cir. 1997).  In that case, an author used Dr. Seuss characters and expression to comment on the O.J. Simpson murder trial. The Ninth Circuit held that "The Cat NOT in the Hat! A Parody by Dr. Juice" did not qualify as parody for copyright purposes because it did not comment on or criticize Dr. Seuss’s original work, but simply used Dr. Seuss’s work to make an unrelated point.

By way of contrast, the Supreme Court held in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), that 2 Live Crew’s use of Roy Orbison’s “Pretty Woman” to ridicule the original as “bland and banal” was an example of parody.

Rocker Walsh’s attorney is incorrect when he says that Candidate Walsh cannot take someone else’s song and change the lyrics. Candidate Walsh can with a parody, though in this case, he didn’t. Instead, he used the music to “Walk Away” as a vehicle to communicate his campaign platform. The new lyrics speak only to his candidacy and don’t comment on the original song in any way. Because he could have just as easily communicated this platform by using his own music, his fair use defense is considerably weakened.

It is helpful that Candidate Walsh used different lyrics and created the video with a political, rather than commercial, intent; but this isn’t likely to meet the “transformative” standard needed for fair use. Ultimately, it’s still Rocker Walsh’s music being used.

The remaining fair use factors require less extensive discussion. Factor 2 offers more protection for highly creative—rather than factual—works, so the fair use scale would tip against Candidate Walsh here as well. And because Cantafio plays the music in its entirety, factor 3 also favors Rocker Walsh.

On factor 4, it’s not likely that Candidate Walsh’s campaign video itself will harm the market for Rocker Walsh’s original musical work. But allowing unfair copying of copyrighted material could undercut the demand for derivative works. See Roger v. Koons, 960 F.2d 301, 312 (2nd Cir. 1992) (artist Jeff Koons’ use of plaintiff’s "Puppies" photograph could undercut the licensing market for derivative works, weighing against fair use). If Candidate Walsh is allowed to use the music to “Walk Away” without permission, it could reduce the incentive of others to license that same music. This would pose the type of economic harm that copyright aims to prevent.

But this probably isn’t Rocker Walsh’s first concern. It seems more likely that the real offense here is not the use of “Walk Away,” but instead the candidate who used the song.
Wrote Paterno to Candidate Walsh: "Given that your name is Joe Walsh, I’d think you’d want to be extra careful about using Joe’s music in case the public might think that Joe is endorsing your campaign, or, God forbid, is you."

Now, that’s not likely to happen.

(Justin Silverman is a CMLP Legal Intern and a third-year evening student at Suffolk University Law School. Justin founded the law school’s Suffolk Media Law student group and its SuffolkMediaLaw.com blog in 2009.) 

I’ve written before about how the three strikes law that is in force in France, and is being contemplated in other countries, is fundamentally wrong.
Take a look at this short video interview from author Cory Doctorow that puts it in perspective.

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.

Europe has become the centre of a storm over the Anti-Counterfeiting Trade Agreement.  Late last week, the Government of Sweden announced that the European Union was now uniformally seeking ACTA transparency.  The announcement came just days after the Dutch leak that identified the specific countries opposed to a transparent approach.  The revelations appear to have had a significant impact as all European Union countries are now said to support release of the ACTA text.

This week the issue hits the European Parliament that includes an ACTA debate on Tuesday, followed by a landmark resolution that will be on the table on Wednesday.   At the moment, there are two competing resolutions.  One resolution promoted by an alliance of the Liberal and Green Party, includes the following:

1.  Expresses its utmost 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;

2.  Is of the opinion that legitimate arguments for non-disclosure do not exist with regard to international negotiations on the enforcement of intellectual property rights or similar issues, which are legislative in character and have an impact on fundamental rights; maintains that the negotiating position of the EU or other negotiating parties is not circumscribed if information about the negotiations is available to the European Parliament and the general public;

3.  Regrets the calculated choice of the parties not to negotiate through well-established international bodies, such as the WIPO and WTO, which have established frameworks of public information and consultations;

4.  Calls on the Commission to grant Parliament access to all primary texts relating to ACTA, in particular the ACTA negotiation mandate by the Council, the minutes of ACTA negotiation meetings, the draft chapters of ACTA, and the comments of ACTA participants on the draft chapters;

5.  Acknowledges that, in addition to the clear legal obligation to inform Parliament, the ACTA documents should also be available to the general public in the EU and in the other countries participating in the negotiations; understands the wide public criticism of the secrecy of the ACTA negotiations as a clear signal of the political unsustainability of the negotiation procedure chosen;

6.  Calls on the Commission to engage proactively with ACTA negotiation partners to cancel any previous formal or informal internal agreements on the confidential nature of the conduct of the negotiations and to inform Parliament about its initiatives in this regard in due course; expects the Commission to make proposals 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;

7.  Reminds the Commission that if it does not provide Parliament with immediate and full information about the negotiations in accordance with Art. 218 TFEU before the next round of negotiations in April, Parliament will have no choice but to bring an action in accordance with Art. 263 TFEU for infringement of the Treaties to the Court of Justice of the European Union;

8.  Calls on the Commission to conduct an impact assessment of the implementation of ACTA with regard to fundamental rights and data protection, ongoing EU efforts to harmonise IPR enforcement measures, e-commerce and the possible impact of ACTA on fundamental rights and the rule of law in third – especially developing – countries, prior to any EU agreement on a consolidated ACTA treaty text, and to consult with Parliament in a timely manner about the results of this assessment;

9.  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; makes any possible assent to the ACTA agreement conditional to the full respect of this affirmation;

10.  Urges the Commission to ensure that the enforcement of ACTA provisions - especially those on copyright enforcement procedures in the digital environment - are fully in line with the letter and the spirit of the acquis communautaire and do not imply ‘self-regulatory’ measures being imposed by private companies outside the scope of democratic decision-making processes; considers that Internet service providers should not bear liability for the data they transmit or host through their services to an extent that would imply prior surveillance or filtering of such data;

11.  Emphasises 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.  Points out that any measure aimed at strengthening powers for cross-border inspection and seizures of goods should not harm global access to legal, affordable and safe medicines;

13.  Instructs its President to forward this resolution to the Commission, the Council and the governments and parliaments of countries participating in ACTA negotiations.

The second resolution, supported by Conservative Members of the European Parliament, includes:

1.  Is aware that the ACTA negotiations, owing to their particular nature, require a high level of confidentiality in order not to undermine the legitimate interests of the stakeholders and the participating States; considers, however, that a more transparent process should be ensured in order to provide appropriate information, as repeatedly requested by the European Parliament;

2.  Welcomes the fact that the Commission has been briefing members of Parliament's Committee on International Trade (INTA), despite the confidential character of the multilateral negotiations, using the format of regular exchanges of views with the Director-General of DG Trade at open meetings of INTA coordinators;

3.  Calls on the Commission to grant Parliament access to documentation of ACTA negotiating texts in order to permit it to be up to date with the state of play of the negotiations; acknowledges that certain information might require confidentiality and should be provided in an appropriate form;

4.  Calls on the Commission also to actively engage with the other ACTA negotiating partners prior to the next negotiating round in New Zealand in April 2010, in order formally to place the issue of transparency on the agenda for that meeting, and to report to Parliament's specialised committee on the outcome of that round immediately after its conclusion;

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

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

7.  Welcomes the Commission's statements to the effect that any ACTA agreement will be limited to the enforcement of existing IPRs, without prejudice to the development of substantive IP law in the European Union;

8.  Urges the Commission to ensure that the enforcement of ACTA provisions – especially those on copyright enforcement procedures in the digital environment – are fully in line with the acquis communautaire and that no personal searches are undertaken at EU borders;

9.  Considers that, in order to comply with fundamental rights, such as freedom of expression and the right to privacy, with full respect for subsidiarity, the proposed agreement should not impose the so-called 'three strikes' procedure;

10.  Emphasises that privacy and data protection are core values of the European Union, as recognised in Article 8 of the European Convention on Human Rights (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;

11.  Instructs its President to forward this resolution to the Council, the Commission and the governments and parliaments of the states party to the ACTA negotiations.

Over the next couple of days there will efforts to merge the two documents.  If adopted, the resulting document will be the strongest statement from an elected body on the need for dramatic change to the current ACTA process. 

On top of these resolutions, there is also a written declaration supported by four MEPs (Françoise Castex, Zuzana Roithová, Alexander Alvaro, Stavros Lambrinidis).  La Quadrature du Net has information on how to support the declaration.

Richard Poynder, who covers open access issues in great detail, has posted a detailed interview with me on ACTA and its implications for open access and IP policy.

Blayne Haggart offers some insight into the fight for ACTA transparency in Mexico.

In the immediate aftermath of yesterday's Speech from the Throne, some copyright watchers claimed that it foreshadowed the return of a Canadian DMCA, pointing to language that promises to "strengthen laws governing intellectual property and copyright."  While the return of Bill C-61 is a possibility, comments from Industry Minister Tony Clement immediately afterward suggest that he is not a mirror image of his predecessor Jim Prentice. 

Clement has spoken frequently on the need for forward-looking legislation and launched a major copyright consultation effort last summer.  Yesterday, he was asked specifically about copyright and U.S. claims that Canada is a copyright outlaw on CTV's Power Play.  His response:

I've been pretty clear to the Americans and in my public statements that we are moving ahead with copyright reform.  The key is, from the American perspective, they want us to be part of WIPO, which is an international treaty on protecting intellectual property.  We don't have a problem with that, but we're going to do it in a made-in-Canada way.  We're not just going to take what the Americans are doing or what the Europeans are doing.  We are going to fit it to the Canadian context and I think that is the right thing to do.

Tom Clark then asks - "so are we joining WIPO?" and Clement says that Canada will be consistent with WIPO.  Note that Clement was also asked specifically about a digital economy strategy.  After noting that Canada is "fair to middling" in international ranks on the digital economy, he pointed to three key areas.  First, the need for a legislative agenda that includes passing the Electronic Commerce Protection Act (the anti-spam bill), introducing copyright reform, and updating Canadian privacy laws.  Second, investing in broadband and networks.  Third, helping spur business adoption of technology.