(Forwarded from Info-Policy-Notes List)
-------- Original Message --------
Date: Wed, 20 Jun 2001 02:22:22 -0700
From: James Love <love_at_cptech.org>
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/000048.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
love_at_cptech.org
1.202.387.8030 fax 1.202.234.5176
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Received on Wed Jan 03 2001 - 19:17:43 GMT