My first reactions:
1) Steganography time for Freenet.
2) Thankfully New Zealand is not a signatory to the Convention
----- Original Message -----
From: "Seth Johnson" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]>;
<[EMAIL PROTECTED]>
Sent: Thursday, June 21, 2001 00:10
Subject: [freenet-chat] [Fwd: Hague Diplomatic Conference Ends, Badly for
Now]
>
> (Forwarded from Info-Policy-Notes List)
>
> -------- Original Message --------
> Date: Wed, 20 Jun 2001 02:22:22 -0700
> From: James Love <[EMAIL PROTECTED]>
>
> As the Hague Conference Diplomatic
> Conference ends
> the Internet and the Public Domain
> are at risk
>
> James Love
> June 20, 2001
>
> INTRODUCTION
>
> 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.
>
> 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.
>
> 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.
>
> THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW
>
> 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.
>
> 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.
>
> POLITICS OF THE CONVENTION
>
> 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.
>
> 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.
>
> 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.
>
> 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.
>
> 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.
>
> 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).
>
> 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.
>
> 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).
>
> 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.
>
> 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.
>
> 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
>
> "obtained by an abuse of economic power
> or other unfair means."
>
> the delegates refused, at least in this draft.
>
> 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.
>
> 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:
>
> [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.]
>
> "Other registered industrial property rights" will cover a lot of
> ground.
>
> There are many more details of the negotiations from the URLs given
> below.
>
> It's time for me to end this for now. For more information, and in
> particular to understand better how the convention works, see:
>
> http://www.cptech.org/ecom/jurisdiction/hague.html
> http://www.cptech.org/ecom/jurisdiction/whatyoushouldknow.html
>
http://lists.essential.org/pipermail/hague-jur-commercial-law/2001-June/0000
48.html
> http://www.gnu.org/philosophy/hague.html
> http://www.tacd.org/cgi-bin/db.cgi?page=view&config=admin/docs.cfg&id=94
> http://lists.essential.org/pipermail/hague-jur-commercial-law/
>
>
> To see which countries and agencies are engaged in the Hague
> Negotiations, see:
> http://www.hcch.net/e/members/members.html
>
> --
> James Love
> Consumer Project on Technology
> P.O. Box 19367, Washington, DC 20036
> http://www.cptech.org
> [EMAIL PROTECTED]
> 1.202.387.8030 fax 1.202.234.5176
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