- As the Hague Conference Diplomatic Conference Ends The
Internet and the Public Domain Are At Risk
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- INTRODUCTION
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- Today the Hague Conference on Private International Law
will end its first diplomatic conference on a new treaty to set the rules
for jurisdiction for nearly all commercial and civil litigation. In a
world where everyone is struggling to understand how to address jurisdiction
issues raised by the Internet, this new proposed treaty imposes a bold
set of rules that will profoundly change the Internet, and not only that.
As drafted, it will extend the reach of every country's intellectual property
laws, including those that have nothing to do with the Internet.
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- What exactly does this new treaty seek to do? In a nutshell,
it will strangle the Internet with a suffocating blanket of overlapping
jurisdictional claims, expose every web page publisher to liabilities for
libel, defamation and other speech offenses from virtually any country,
effectively strip Internet Service Providers of protections from litigation
over the content they carry, give business who sell or distribute goods
and services the right to dictate via contracts the countries where disputes
will be resolved and rights defended, and narrow the grounds under which
countries can protect individual consumer rights. It provides a mechanism
to greatly undermine national policies on the "first sale" doctrine,
potentially ending royalty free video rentals for corporate entities with
overseas assets, and it opens the door for cross border enforcement of
a wide range of intellectual property claims, including new and novel rights
that do not have broad international acceptance. It will lead to a great
reduction in freedom, shrink the public domain, and diminish national sovereignty.
And practically no one knows anything about the treaty.
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- This proposed Hague treaty stands the tradition globalization
approach on its head. It does not impose global rules on substantive laws
-- countries are free to enact very different national laws on commercial
matters. The only treaty obligation is that member countries follows rules
on jurisdiction and agree to enforce foreign judgments. Rather than a
WTO or WIPO type approach of harmonization of substantive policies, every
country can march to its own drummer. The treaty is about enforcing everyone's
laws, regardless of their content, and enforcing private contracts on which
national courts will resolve disputes. It is a treaty framework that
made some sense in a world of trade in pre-internet goods and services
that lend themselves to easy interpretation of jurisdiction based upon
physical activity. It is a treaty that makes little sense when applied
to information published on the Internet, and more generally for intellectual
property claims, where one should not leap into cross border enforcement
without thinking.
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- THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW
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- The Hague Conference on Private International Law is
a little known organization that held its first meetings in 1893, but did
not have a permanent status until 1951, and since then has adopted 34 international
conventions, mostly on very narrow and often obscure topics, such as the
taking of evidence abroad, the form of testamentary depositions, wills,
traffic accidents, and several dealing with children.
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- In 1965, the Hague Conference adopted a Convention on
the choice of court for civil litigation, but it only was endorsed by one
country -- Israel. The current effort is a renewed effort to deal with
that issue, and also the enforcement of judgments and other items, and
the scope is extremely wide -- nearly all civil and commercial litigation.
It is, without a doubt, the most ambitious project undertaken by Convention,
and the Secretariat and the member country delegates are anxious to establish
the Conference as a major league actor in the rapidly changing global political
economy. Despite its grand ambition, the Hague Conference secretariat
is tiny, about a dozen according to a FAQ on its web page. The small
size and low profile of the Hague Conference has allowed this treaty, which
has enormous significance, to go virtually undetected, even though it is
has been in discussions since 1992.
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- POLITICS OF THE CONVENTION
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- The official version of this particular convention on
jurisdiction and enforcement of foreign judgments is that in 1992 the US
began seeking ways to obtain more equitable treatment of the enforcement
of judgments from commercial and civil litigation, and was willing to cut
back on some aspects of US "long arm" jurisdiction to do so.
In the beginning, none of the negotiators were thinking about the Internet,
and the treaty seemed to have limited interest to most persons. By 1996
it was obvious to some that the Internet in general and e-commerce in particular
would pose special problems for the Convention. By 1999 there was considerable
attention given by business interests on how the Convention could be drafted
to resolve a number of jurisdiction problems they faced, and in particular,
the Hague Secretariat began suggesting the Convention could be used to
replace overlapping national laws on consumer protection and privacy with
industry lead alternative dispute resolution systems -- a top priority
for the biggest e-commerce firms.
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- Meanwhile, Europe was developing its own rules for jurisdiction
that made some sense in an environment where you had entities like the
European Parliament and the European Commission to force harmonization
of substantive law. Europe was also alarmed and jealous of the US leadership
in the development of the Internet. European negotiators pushed hard to
impose a treaty based upon the EU's Brussels Convention, not only to preserve
the European approach, but to lead, for once, in an important area for
the Internet.
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- The European negotiators were also unhappy with the generally
free and unruly nature of the Internet, and saw the convention as a mechanism
to reign in hate speech, libel and defamatory speech, "piracy"
of intellectual property, the publishing of government secrets and documents
on the Internet (the David Shayler case), and other unsettling aspects
of the Internet.
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- The business community, meanwhile, was unhappy with the
EU approach to providing consumer protection, including privacy rights,
and fearful that the Convention could expose them to lawsuits from several
different countries for violating consumer protection and privacy laws.
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- Meanwhile, Napster had mobilized the music and movie
businesses, and they increasing saw the need for stronger cross border
enforcement of copyrights, including the need for injunctive relief aimed
at ISPs, and the strong long and order (you can run but you can't hide)
nature of the Hague convention was very appealing to an industry afraid
of losing control over its own business models.
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- A few IPS (Verizon and AT&T) and portals (Yahoo,
following its education over the French civil suit over Nazi artifacts)
saw this as a repeat of the fights over the digital copyright laws, and
lobbied to retain some form of common carrier status, which was greatly
undermined by the architecture of the Hague Convention, which was to make
everyone's judgments enforceable everywhere, even in countries that had
no connection to the tort or delict (greatly undermining the usefulness
of national "public policy" exceptions).
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- Within the various member country delegations, you have
some that have strong experience in contracts and business to business
arbitration, and who see the 1958 New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards as a successful model to emulate.
You have other members who are primarily interested in torts, which come
at the issues from a different perspective, and who don't see the convention
entirely as strengthening the enforcement of contracts.
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- In 2000 some elements of civil society became aware of
the convention, and in particular, BEUC (the European consumer groups),
the Trans Atlantic Consumer Dialogue (TACD), including both US and EU members,
the American Library Association, the Free Software movement, and some
US free speech groups, such as the ACLU, began to follow the Convention.
In 2000 the Consumer Project on Technology made the Hague Convention its
top e-commerce priority, and by September 2000 the US government added
Manon Ress from Essential Information on the US delegation (which already
had several private sector members representing business interests).
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- For the past two years, in a series of meeting leading
up to the June Diplomatic Conference (which ends today), there were efforts
to sort of the impact of the convention on e-commerce and on intellectual
property. The US in particular was quite open in consulting with civil
society and the public in general, and Australia asked for public consultations
too, but it would appear that no other countries did. However, while civil
society concerns were presented at virtually every negotiating meeting
over the past year, this month's diplomatic conference was a powerful illustration
of the power of the business lobbies.
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- The EU seemed to undertaking a strategy of pushing for
a "disconnect" for regional agreements, and in particular, for
its own EU directive on Jurisdiction take precedence in EU to EU transactions,
leaving intact the stronger EU consumer protection measures for EU to EU
transactions, while bowing to US government pressure to gut consumer protection
provisions from the 1999 draft of the convention. This was a major victory
for the big e-commerce firms.
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- One element of this was to essentially expand the definition
of "business to business" transactions, and to greatly strengthen
the role of contracts in the convention, making for example, choice of
court clauses mandatory in almost everything that does not involve personal
or household use (and sometimes even then), even when these are "non-negotiated"
contracts, such as shrink wrap or click-on contracts. Despite repeated
efforts by civil society to fix this, and to limit the enforcement of such
clauses where the contracts had been
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- "obtained by an abuse of economic power or other
unfair means."
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- the delegates refused, at least in this draft.
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- So too there was a complete unwilling to address the
importance of speech related torts, despite the fact that the membership
in the Hague Conference now includes China, Egypt and many other countries
that engage in harassment of dissent, and which can easily create repressive
civil actions to stop dissent. The EU delegates would not even consider
adding favorable speech language from the European convention on human
rights.
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- A major objective of CPT, TACD, the Library community
and the free software movement was to take intellectual property out of
the convention, a move initially supported by the trademark and patent
societies, due to the ham-handed way that patents and trademarks had been
addressed in the 1999 secretariat draft of the convention, and also the
subject of a WIPO sponsored meeting in Geneva in January 2001. In February
2001, in Ottawa, the US government actually circulated a paper to the delegates
that said the US would not sign the convention if intellectual property
was included. AOL/Time Warner, Disney, the MPAA, RIAA, publisher groups
and other content owners went ballistic, and by the June meeting the US
position had changed, and yesterday, intellectual property was included
in the convention, in a form stronger than ever. Also noteworthy was the
new bracketed language:
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- [In this Article, other registered industrial property
rights (but not copyright or neighbouring rights, even when registration
or deposit is possible) shall be treated in the same way as patents and
marks.]
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- "Other registered industrial property rights"
will cover a lot of ground.
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- There are many more details of the negotiations from
the URLs given below.
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- It's time for me to end this for now. For more information,
and in particular to understand better how the convention works, see:
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- http://www.cptech.org/ecom/jurisdiction/hague.html
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- http://www.cptech.org/ecom/jurisdiction/whatyoushouldknow.html
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- http://lists.essential.org/pipermail/hague-jur-commercial-law/2001-June/000048.h
tml
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- http://www.gnu.org/philosophy/hague.html
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- http://www.tacd.org/cgi-bin/db.cgi?page=view&config=admin/docs.cfg&id=94
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- http://lists.essential.org/pipermail/hague-jur-commercial-law/
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- To see which countries and agencies are engaged in the
Hague Negotiations, see: http://www.hcch.net/e/members/members.html ___
-
-
- By James Love Consumer Project on Technology P.O. Box
19367, Washington, DC 20036 http://www.cptech.org love@cptech.org
-
- I asked for some details on which countries are making
the greatest contributions to the treaty, and I found this interesting.
-
- -- Original Message --
-
- Subject: Some figures re Delegations participation Date:
Wed, 20 Jun 2001 12:43:07 -0400 From: Manon Ress <mress@essential.org
Organization: Essential Information To: James Love <love@cptech.org
-
- You asked me who is talking and drafting. Here are some
figures: During the June 6-21 diplomatic conference (12 working days) the
delegates from about 35 member states (there are now 52 member states since
Jordan joined this week) produced 111 working documents. 13 countries
produced the documents but almost all the delegates participated during
the plenary. There were 14 "joint proposals" (the US was part
of 5 of them).
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- There were 13 informal working groups: on article 5,
4, anti-trust, 9, 34, 33 25, 6, 13, 12, 7, 11 and one on forms.
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- Working documents tally:
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- Swiss (2 delegates) 20 proposals
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- US (13 del?)19 proposals
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- Japan (3 delegates) 7 proposals
- UK (up to 8) 7 proposals
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- Denmark (2 del) 4 proposals
- France (2 delegates) 4 proposals
- Germany (2 delegates) 4 proposals
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- Korea (2 delegates) 3 proposals
- Australia (3 delegates) 3 proposals
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- China (up to 8?) 1 proposal
- Netherlands (3 delegates) 1 proposal
- New Zealand (1 delegate) 1 proposal
- Belarus (1 delegate) 1 proposal
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- Commission (2 delegate) 1 proposal
- Commmunaute (1) 1 proposal
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- Hague Bureau (about 16 on staff) 2 documents
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- Industries (ISP's, trademark, IP, Content) up to 8
- or 10 at times 4
- proposals
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- Democratic lawyers 1 rep 1 proposal
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- The most active delegates during meetings were from:
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- New Zealand, Switzerland, Germany, Austria, Denmark,
- US, France,
- Finland, UK, Japan, Korea, Australia and China.
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- We also heard a little from Norway, Spain, Italy,
- Greece, Monaco,
- Luxembourg, Argentina, Mexico, Israel, the
- Netherlands, Canada.
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- and once or twice from Ireland, Belgium, Croatia,
- Spain, Hungary,
- Portugal and Ukraine.
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- The interpreters did a great job but language (and
- culture) clearly
- favored English speakers.
- --
- Manon Anne Ress
- mress@essential.org
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