Dalsze przecieki WikiLeaks na temat negocjacji porozumienia ACTA i globalnego prawa autorskiego

W ramach systematycznego ujawniania depesz dyplomatycznych WikiLeaks opublikowało kolejną porcję takich depesz, które związane są z negocjacjami porozumienia Anti-Counterfeiting Trade Agreement (por. również Prace nad globalnym prawem własności intelektualnej w niektórych notatkach WikiLeaks). Dyplomaci sygnalizowali m.in., że tylko kwestią czasu jest, gdy państwa europejskie zorientują się, że ACTA ma chronić głównie interes USA, a ignoruje interesy europejskie. Dyplomaci raportują też kolejne przypadki zatrzymań związanych z prawem własności intelektualnej, komentują presję międzynarodową w tym obszarze, są też depesze poświęcone The Pirate Bay.

Przywołane niżej depesze można znaleźć m.in. za pomocą serwisu cablesearch.org (The European Center of Computer Assisted Reporting), który przetwarza oryginalne materiały udostępniane przez WikiLeaks. Wnioski próbuje z nich wyciągnąć laquadrature.net w tekście WikiLeaks Cables Shine Light on ACTA History. Wnioski te na język polski przełożył Dziennik Internautów: Wikileaks: ACTA miała wywierać nacisk na inne państwa.

Ułożyłem poniżej depesze "chronologicznie", a więc nie w takiej kolejności, w jakiej były w dniu wczorajszym ujawnione:


2. (U) ECMIN raised ACTA with MFA Deputy Director for Economic Affairs Minister Spinetti November 17, and with Undersecretary Gianni at the Economic Development Ministry, November 21. ECMIN portrayed ACTA as a tool like-minded countries could use to advance the Intellectual Property Rights (IPR) agenda dynamically and with fewer political difficulties than high-standards countries would encounter at the World Intellectual Property Organization (WIPO), the Organization for Economic Cooperation and Development (OECD), the European Union (EU), or even the G-8.

3. (SBU) Both Spinetti and Gianni agreed with ECMIN in principle, expressed interest in the ACTA proposal, and indicated Italy agrees with ACTAQs proposed goals. Spinetti and Gianni also both indicated Italy should be part of the ACTA work-in-progress (at least as an Qinterested observerQ), and Spinetti suggested Italy might attend a launching session in Washington. However, Spinetti and Gianni highlighted ItalyQs commitment to multilateral organizations, such as WIPO, the EU, and the G-8, and emphasized that the GOI must evaluate taking steps outside these institutions very carefully.

4. (SBU) Spinetti also told ECMIN that he had heard of a WIPO concern about ACTA Q that this agreement could potentially reduce WIPOQs leadership role in international IPR protection matters.

5. (SBU) ECONCOUNS then met with Fabrizio Pagani, Chief of Staff to Undersecretary to the Prime Minister, Enrico Letta, November 22. Pagani has the working-level lead on G-8 IPR issues for Italy, and is the POC for GOI on ACTA. Pagani told ECONCOUNS that he had already discussed ACTA with Assistant Secretary Christopher Moore during the recent G-8 working-level IPR meeting in Moscow. He underscored that the current GOI is very committed to working within existing multilateral organizations, and added that it would be Qeasier,Q if the Commission were also at any negotiating table. Pagani stated, nonetheless, that Italy is very interested in the proposal and could attend a preliminary session in Washington. That said, Pagani outlined a series of GOI concerns: - EU Commission Role in the Negotiations. Pagani does not believe the Commission has exclusive competence on IPR, but he does believe having the Commission at the table would make it QeasierQ for EU members in any eventual negotiation. - A Role for Countries with Weak IPR Enforcement. While he understood the rationale for not including countries with weak IPR regimens (e.g., China and Russia), Pagani indicated that Italy would want to discuss further the exclusion of such countries. - Germany G-8 IPR Focus. Pagani also expressed concern over possible political sensitivities in pursuing ACTA, while Germany simultaneously makes IPR protection a top priority of their G-8 Chairmanship.

6. (SBU) However, when ECONCOUNS asked him directly if, all the above considered, Italy could actually participate in ACTA negotiations, Pagani replied Italy would, if it were in Italys own interest to do so. SPOGLI

W depeszy 06TOKYO3567 (Japan Backs Anti-Counterfeiting Trade Agreement Proposal TOKYO):


2. (SBU) USTR's Chief Negotiator for IPR Enforcement, Stanford McCoy met with officials of the Ministry of Foreign Affairs (MOFA) and METI (Ministry of Economy, Trade and Industry) and the Intellectual Property Strategy Headquarters (IPSH) in Tokyo on June 13 and June 14. In each meeting McCoy explained USTR's concept of a plurilateral, TRIPS-plus Anti-Counterfeiting Trade Agreement (ACTA) which would aim to set a ""gold standard"" for IPR enforcement among a small number of like-minded countries, and which other countries might aspire to join. McCoy stressed that this should be a freestanding agreement, not related to any international grouping such as the G-8 or OECD, which might make it more difficult to construct a high-standards agreement. McCoy pointed out that the United States has garnered a lot of experience negotiating high-standards IPR agreements (aside from the enforcement elements) as part of the Free Trade Agreements it has negotiated in recent years. Potential partners in the agreement could include Australia, Singapore, Korea, New Zealand, Switzerland, Morocco, Jordan, EU countries, Mexico and Canada. McCoy's discussions with the same officials on a possible WTO case against China on IPR will be reported separately.

GOJ welcomes Anti-Counterfeiting Agreement

3. (SBU) Japanese officials were unanimously enthusiastic in their support for USTR's proposed Anti-Counterfeiting agreement. They were surprised, but happy that the United States had responded with a strong counter-proposal. (Japanese officials admitted in the meetings that, up to now, only France had responded with enthusiasm to their earlier anti-counterfeiting treaty idea.) They promised to study the proposal further and send questions via the Japanese Embassy in Washington. Tadaatsu Mohri, Principal Deputy Director of MOFA's International Trade Division, said the GOJ had wanted to continue to raise the issue within the G-8 where Prime Minister Koizumi had proposed it, but was willing to listen to U.S. arguments about why it should be a freestanding agreement. Japanese officials had hoped to use the expertise of the OECD staff to help them in drafting and negotiating an anti-counterfeiting treaty, but seemed reassured when McCoy assured them that USTR probably had sufficient expertise in the area that it was not necessary to enlist the OECD or another international organization.

4. (SBU) MOFA, METI, and IPSH officials all wanted to know more about what standards and core concepts the USG considered essential to the proposed agreement. IPSH Secretary General Arai asked for USTR to provide a draft agreement or at least a copy of the IPR section of recently negotiated FTAs. McCoy agreed that the United States and Japan should discuss this further and reach a mutual understanding on the key elements, based upon which they could approach other governments. McCoy reminded GOJ officials that Japan would need to continue its leadership role with respect to this agreement, with the United States as its partner, and that Japanese officials would need to do much diplomatic legwork.

5. (SBU) Several Japanese officials wondered about a timetable for negotiating the agreement. IPSH Secretary-General Arai proposed that the United States and Japan should set a goal of negotiating an agreement within one year, and coming into effect one year later. Arai cautioned that it would be a shame if the like-minded countries were to become bogged down arguing amongst themselves about what should be included -- that would only provide amusement for the counterfeiters without improving the situation. For that reason, he advised that the USG should concentrate on a set of TRIP-plus standards on which there is already some consensus. Arai also TOKYO 00003567 002.2 OF 002 hoped the U.S. and EU would not become embroiled in side issues, such as geographical indications.

------- Comment -------

6. (SBU) Japanese officials seemed genuinely delighted and surprised to have received USTR's well-thought out counter-proposal, but seemed uncertain about how to move ahead. Apparently GOJ officials had hoped to rely on the expertise of the OECD to help them draft a treaty and had to be reminded several times that the United States expected Japan to take the lead jointly with the United States in sharing the proposal with other countries.

7. (U) This cable has been cleared by USTR Chief Negotiator for IPR Enforcement Stanford McCoy. DONOVAN ",6/28/2006,Japan Backs Anti-Counterfeiting Trade Agreement Proposal TOKYO 00003567 001.2 OF 002 1.,(SBU) Japanese Trade and Foreign Ministry officials expressed unanimous support for USTR's proposal to revise the objectives of Japan's efforts to promote a global framework on preventing proliferation of counterfeit and pirated goods by seeking a high-standards Anti-Counterfeiting Trade Agreement among a select group of like-minded countries. The Japanese side would like to learn more about what exactly the United States wants to include in the agreement and which standards the U.S. considers essential.


Anti-counterfeit and piracy agreement/treaty

5. (SBU) Arai believes that it should not be too difficult to reach an agreement on the text of an Anti-Counterfeit Trade Agreement (ACTA) among like-minded countries and that we should aim to finish talks by the end of this year. There is a strong support for such an agreement within Japan, including among lawmakers of ruling and opposition parties Arai stated, singling out Okiharu Yasuoka (LDP), Akira Amari (LDP), and Naoto Kan (DPJ) who is a patent attorney, as strong IPR supporters.

6. (SBU) Arai stressed that we should move as fast as possible and keep in mind that the intent of the agreement is to address the IPR problems of third-nations such as China, Russia, and Brazil, not to negotiate the different interests of like-minded countries. The new agreement could serve as a yardstick for measuring the market economy status of countries such as China and Russia.


Strong political support for ACTA

2. (SBU) Yoshio Tanabe, MOFA Deputy General, Economic Affairs Bureau, told DAS Moore that he expected a consolidated ACTA draft to be ready in about a month. Japanese officials all emphasized that the new PM, Shinzo Abe, in his former role as Chief Cabinet Secretary, was both interested and well-informed on IPR issues and supported on the proposed agreement. He chaired many Cabinet Secretariat discussions on IPR topics. But legal obstacles remain

3. (C) Hisamitsu Arai, Secretary General of the Cabinet,s IP Strategy Headquarters, warned that the GOJ would find it very difficult to commit to changing its laws on ex officio prosecutions, statutory damages, and sentencing guidelines. Although he personally supported all of these measures, Arai cautioned that it would take considerable time and effort to try to get those changes through the Japanese bureaucracy. He believes that there would be a substantiation delay if the United States insists on these changes. On sentencing guidelines, the Ministry of Justice is philosophically opposed, believing it goes against the Japanese Constitution, which leaves such decisions up to individual judges. Regarding ex officio prosecutions, Arai pointed out that although these are allowed for trademark goods, allowing ex officio prosecutions for copyright goods has been discussed within the GOJ for ten or twenty years and consistently rejected by the Agency for Cultural Affairs which oversees copyright laws. When pressed on whether Cultural Affairs or Customs had the lead on ex officio authority, Arai did not know.

4. (SBU) As he has in the past, Arai argued that we should not waste time getting bogged down in agreements amongst ourselves, while those responsible for piracy and counterfeiting are busy profiting. If the United States and Japan agree on almost everything else, they should not allow the five precent they do not agree on to stop the process. There are bound to be some differences among countries about which are the most essential and highest standards needed to protect IPR, Arai added. The Europeans may want to insist on having something about geographic indicators, for example. It is more important to set a timetable for moving quickly based on a consensus of the most essential standards that the advanced IPR countries can agree on, Arai asserted. He recommended a broader strategy which recognizes that new IPR issues will be arising ever year because IPR protection is a moving target and we cannot resolve all issues right now.

5. (SBU) DAS Moore explained that it is critical for ACTA to define a new global benchmark in IPR protection and that the TOKYO 00005805 002.2 OF 004 U.S., too, has improved its laws to strengthen IP enforcement. He added that Congress has welcomed the opportunity to engage on these issues, changing laws where necessary. Moore stressed that the United States is keen to move forward quickly, but with an effective, high-standard agreement. As we work together to reach out to other like-minded countries, he said, it will be essential for Japan to consider seriously improvements to its enforcement regime.

6. (SBU) MOFA took a softer approach to these problems with Tanabe saying simply that the GOJ prefers not to have to change its own laws to meet USG proposals for a Gold Standard because it would be both difficult and time-consuming. He thought it would take long internal discussions within the GOJ and talks with Japanese stakeholders. Tanabe urged the U.S. side to focus on the issue of effectiveness of IPR protections and enforcement. Hiroshi Soma, MOFA Intellectual Property Division Director in the Economic Affairs Bureau, pointed out that in an interagency meeting last week including eight Japanese ministries and agencies, the question of making changes in Japanese laws was explicitly left open and the group did not exclude the possibility.

Approaching G-8 and Other Countries on ACTA

7. (SBU) MOFA,s Soma noted that the GOJ still wants to include the G-8 and its member states going forward in discussions of ACTA because that is where the GOJ first raised the issue. In addition, the GOJ wants to keep pushing IPR as an issue within the G-8, stressing the need for countries, including developing countries, to create an atmosphere where innovation and creativity can flourish. Nakatomi, on the other hand, said he discussed ACTA during a recent visit to Moscow and made no progress. He agreed that raising ACTA in the G-8 would be very difficult, if not impossible, because of the Russians, inevitable opposition.

8. (C) There were some nuanced views on engaging the Europeans on ACTA. At MOFA, Soma agreed with DAS Moore that it would be best to concentrate on individual member states before approaching the EU in detail. At METI, both Trade Policy Director General Masakazu Toyoda and Director General Michitaka Nakatomi told Moore that in some way the European Commission, which has jurisdiction in the EU over these issues, would have to be engaged sooner rather than later in the ACTA discussions. Otherwise, there could be a problem with the Europeans down the road. Nakatomi in particular understood U.S. interest in approaching member states first, nothing for example that the Commission could link the whole discussion of ACTA to a discussion of geographic indicators, a prospect which Moore termed a &non-starter8 for the U.S. Both agreed that careful management would be required.

9. (SBU) The GOJ sees the most likely candidates for the first tranche including France, UK, Germany, Australia, New Zealand and Singapore. The GOJ sees Italy and Canada as countries which should be approached in the second group, but DAS Moore explained potential difficulties with Canada, and pushed for the inclusion of developing countries such as Jordan and Morocco in the first tranche, too. These countries had accepted high IPR standards in their FTA,s with the U.S.


1. This is an action request. See paragraph 4.

2. Counselor Fabrizio Mazza, head of the MFA's intellectual property office, contacted the Embassy regarding the Anti-Counterfeiting Treaty Agreement (ACTA) proposal. He said two sources (one USTR, another (unidentified) in Brussels) had informed him that the USG had presented the joint U.S.-Japanese ACTA proposal to the EU Commission in Brussels. Mazza is confused and concerned because he thinks it will be much more difficult to reach an agreement by involving the EU, and he understood the USG intent was to deal directly and preferably with only member states, instead of the Commission.

------- COMMENT -------
3. There is considerable GOI interest in ACTA. Post requests that to the extent possible messages to host governments be passed through host country Embassies via cable to ensure Embassies relate--and understand--USG views.
END COMMENT. --------------

ACTION REQUEST --------------

4. Post requests the following: clarification on the current status of the ACTA proposal, clarification on whether it has been presented to the Commission, and USG views on how a Commission role in negotiating ACTA would affect member state involvement.


1. (SBU) There has been some progress on a number of concerns included in the Mexico Special 301 Initiative demarche (e.g., increased enforcement activity, improved cooperation with local governments, no new patent linkage problems), but other concerns remain unaddressed (e.g., ex officio authority and data protection for pharmaceuticals). Mexican IPR officials have been keen to highlight their increasingly active role in the international arena, stressing their willingness to join the Anti-Counterfeiting Trade Agreement (ACTA) negotiations and their push-back against Brazilian efforts to undermine IPR in international health organizations. The U.S. Mission, together with Washington-based agencies, recently organized U.S. participation in a judicial event on trademarks and hosted a workshop in Monterrey aimed at encouraging greater federal-local cooperation in IPR protection in northern Mexico. Spring 2008 will be even busier, with a PTO training course on patent issues planned for January, a customs IPR training course scheduled for early February, a State-sponsored voluntary visitor program for Mexican legislators to visit Washington at the invitation of their U.S. congressional counterparts to discuss IPR in mid-February, an international judges forum on IPR issues being hosted by Mexico in late February, and DoJ assistance on computer forensics and writing an IPR handbook for prosecutors to take place sometime in the first half of the year. These exchanges are proving very useful in advancing U.S. interests in Mexico, particularly with regard to raising IPR consciousness among Mexican judges. End summary and comment.


5. (SBU) Donnelly raised the Anti-Counterfeiting Trade Agreement (ACTA) and mentioned the Italian government's view that member-states should be directly involved in ACTA negotiations. He underscored Washington's desire to avoid getting in the middle of a debate on EU member-state competencies while noting that the topic was a complex one involving not only trade, but also intellectual property rights, customs, law enforcement, and judicial issues. Escaria said the Portuguese government was aware of the debate and noted that Lisbon was happy with the leadership of the Commission on the issue. Macieira agreed, but emphasized that, as discussions progressed, member-states would have to be brought into the dialogue. Lucio stressed that the work covered by ACTA is very important and should be tackled in a high-profile way to help give visibility to the issue.


8. (SBU) Mazza does not expect an Anti-Counterfeiting Trade Agreement (ACTA) text by the end of the year. Summer, or even fall, of 2009 is the earliest he imagined an agreed-upon text would be possible. In his view, European countries are likely to ask for a slowdown in negotiations because of ROME 00001337 002 OF 002 opposition to the EU commission's involvement in negotiating portions of the treaty, disagreements over the confidentiality level of the negotiations, and the absence of geographical indications from the agreement.

9. (SBU) Mazza said member states are opposed to the EU Commission negotiating matters related to criminal enforcement. Mazza observed that member state competency in this area would make it more appropriate that these points be negotiated by the EU member state holding the rotating presidency. He said the United Kingdom and Scandinavian countries are particularly heated in their opposition to the Commission's involvement on these points, but that Italy is also opposed.

10. (SBU) The level of confidentiality in these ACTA negotiations has been set at a higher level than is customary for non-security agreements. According to Mazza, it is impossible for member states to conduct necessary consultations with IPR stakeholders and legislatures under this level of confidentiality. He said that before the next round of ACTA discussions, this point will have to be renegotiated.

11. (SBU) According to Mazza, ACTA is a de facto ""TRIPS Plus"" in the view of many European nations, yet ACTA does not address geographic indications, which is addressed in TRIPS. He said it's ""only a matter of time"" before a European delegation points out that this upgrade to TRIPS addresses the key American issues of piracy and counterfeiting but ignores the key European issue of geographical indications. He indicated that this omission would not be a deal breaker, but would slow negotiations.


2. (SBU) Post contacted Stefan Johansson, who has represented the EU at the ACTA negotiations during the Swedish EU Presidency. He told us that the secrecy issue has been very damaging to the negotiating climate in Sweden. All political parties have vocal minorities challenging the steps the government has taken to step up its IPR enforcement. For those groups, the refusal to make ACTA documents public has been an excellent political tool around which to build speculation about the political intent behind the negotiations. If the instrument for example had been negotiated within the World Intellectual Property Organization (WIPO) critics say, WIPO's Secretariat would have made public initial draft proposals.

3. (SBU) In Johansson's opinion, the secrecy around the negotiations has led to that the legitimacy of the whole process being questioned. This, combined with the leaked European Commission document summarizing an oral account of the U.S. internet chapter proposal, forced Justice Ministry State Secretary Magnus Graner to go public earlier this month to appease the storm of critics by assuring them that the Swedish government will not agree to any ACTA provision that would require changes to current Swedish laws.

4. (SBU) Johansson said that in his opinion, there is strong support within the negotiating group for the position that a negotiated text coming out of the ACTA discussions must be made public while there is still scope to influence the final outcome. He further told us that the European Commission is concerned that the USG has close consultation with U.S. industry, while the EU does not have the same possibility to share the content under discussion in the negotiations.

5. (SBU) EU Member states' representatives will meet around November 25-26 to further discuss the U.S. internet chapter proposal, and to coordinate its position going forward. Johansson will, of course, no longer negotiate on behalf of the EU come January 2010 - when the Presidency rotates to Spain. Nonetheless, Johansson told us he hopes the negotiations might be concluded during 2010, maybe during the second half of the year. He said that we need to get to a point soon where we start separating out linguistic differences from the principal issues that need to be negotiated. Thus far, the negotiations have not been effective at separating out the core issues.

Dalej zaś mowa o działaniach organów ścigania w Szwecji i o pracach nad dyrektywą IPRED:

IPRED legislation -----------------

6. (U) Swedish Police Enforcement officials are complaining that implementation of the IPRED has made it more difficult to solve crimes. Swedish Internet Service Providers are saving user information related to IP-numbers for a shorter period of time following the IPRED legislation.

7. (U) Also, as previously reported (Ref A) the IPRED legislation might be doing little to stop the problem of illegal file-sharing as internet users now are using services which allow them to hide their IP-addresses.

IPR-issues discussed in Swedish Parliament ---------------------------------------

8. (U) U.S. Professor Lawrence Lessing lectured at the Swedish Parliament on November 18. Following the discussion he told Swedish media he hopes to shift the focus from illegal file-sharing to means of enabling ""remix and creativity."" Lessing maintains that it is important to both compensate right-holders, but also allow remix of certain intellectual property without compensation.

W tej depeszy jest też o The Pirate Bay:

9. (U) The Pirate Bay has removed its tracker, to comply with a previous court injunction delivered in October. According to one of the founders of The Pirate Bay, the tracker is not needed for the website to function. Monique Wadsted, legal representative of the U.S. movie industry, says that the removal is not enough for The Pirate Bay to be in compliance with the USD 72,000 injunction.

10. (U) The founders of The Pirate Bay have appealed the injunction on grounds that the Stockholm District Court lacks jurisdiction because the Pirate Bay founders no longer live in Sweden. Moreover, the founders oppose the decision, arguing that they no longer have control over the website, which is located outside Sweden as well.

11. (U) Following removal of the tracker from The Pirate Bay's website, an identical tracker surfaced on a Swedish website. Monique Wadsted, representing the U.S. movie industry, on November 18 filed a claim in court, asking ISP Portlane to shut off bandwidth to the tracker which allows for file-sharers to connect with each other.

Piotr VaGla Waglowski

Piotr VaGla Waglowski - prawnik, publicysta i webmaster, autor serwisu VaGla.pl Prawo i Internet. Ukończył Aplikację Legislacyjną prowadzoną przez Rządowe Centrum Legislacji. Radca ministra w Departamencie Oceny Ryzyka Regulacyjnego a następnie w Departamencie Doskonalenia Regulacji Gospodarczych Ministerstwa Rozwoju. Felietonista miesięcznika "IT w Administracji" (wcześniej również felietonista miesięcznika "Gazeta Bankowa" i tygodnika "Wprost"). Uczestniczył w pracach Obywatelskiego Forum Legislacji, działającego przy Fundacji im. Stefana Batorego w ramach programu Odpowiedzialne Państwo. W 1995 założył pierwszą w internecie listę dyskusyjną na temat prawa w języku polskim, Członek Założyciel Internet Society Poland, pełnił funkcję Członka Zarządu ISOC Polska i Członka Rady Polskiej Izby Informatyki i Telekomunikacji. Był również członkiem Rady ds Cyfryzacji przy Ministrze Cyfryzacji i członkiem Rady Informatyzacji przy MSWiA, członkiem Zespołu ds. otwartych danych i zasobów przy Komitecie Rady Ministrów do spraw Cyfryzacji oraz Doradcą społecznym Prezesa Urzędu Komunikacji Elektronicznej ds. funkcjonowania rynku mediów w szczególności w zakresie neutralności sieci. W latach 2009-2014 Zastępca Przewodniczącego Rady Fundacji Nowoczesna Polska, w tym czasie był również Członkiem Rady Programowej Fundacji Panoptykon. Więcej >>