by Glyn Moody
October 4, 2011
from the who's-leader-of-the-*free*-world-now? dept
One of the striking features of the Anti-Counterfeiting Trade Agreement is that it is mainly being signed by Western/“developed” countries – with a few token players from other parts of the world to provide a fig-leaf of nominal inclusiveness. That's no accident: ACTA is the last-gasp attempt of the US and the EU to preserve their intellectual monopolies – copyright and patents, particularly drug patents – in a world where both are increasingly questioned.
Much of the challenge to the old order is coming from the BRICS group of emerging countries – Brazil, Russia, India, China and South Africa – none of which has been involved in ACTA. Of those, the one in the vanguard of adopting innovative approaches to making knowledge widely accessible in the Internet age is Brazil.
For example, the federal government has actively supported open source software by creating a Public Software Portal. The country has also been at the forefront of open content use: just this week, the city of São Paulo specified that all educational materials produced for it must be released under the Creative Commons CC BY-NC-SA license.
It's true that there have also been some mixed signals recently, notably the re-surfacing of the punitive “cybercrime bill”, which Techdirt reported on a couple of months ago. But here's some positive news coming out of the country, in the shape of a draft of a bill for a civil rights-based framework for the Internet:
The draft bill proposition for a Civil Right’s Based Framework for Internet in Brazil has just reached Congress. The English translation of this version is available here
It is the result of an initiative from the Brazilian Ministry of Justice, in partnership with the Center for Technology and Society of the Getulio Vargas Foundation (CTS/FGV), to develop a collaborative online/offline consultation process in which all the actors from Brazilian society could identify together the rights and responsibilities that should guide the use of the Internet in Brazil. The process, which resulted in a Bill of Law, is an example of the importance and the great potential of multistakeholder involvement on policy-making.
NGOs, universities, internet service providers (collectively though associations, as well as individually), business companies, law firms, law enforcement agencies, individuals, Brazilian Embassies from all over the world, and many other participants have joined the online public hearing. The participation of several stakeholder groups has promoted the diversity of opinions and the availability of high quality information and expert advise, which have helped the government to draft a balanced bill. The openness and transparency of the process, entirely conducted online, in the public eye, has improved the legitimacy of the bill. Marco Civil was introduced in Congress with the political weight and the legitimacy that the Bill would be expected to have after a complex multistakeholder discussion.
Among its fundamental principles:
I – safeguarding freedom of speech, communication, and manifestation of thought, in the terms of the Constitution;
II – the protection of privacy;
III – the protection of personal data, in accordance to the law;
IV – the preservation and safeguarding of net neutrality, in compliance with further regulation;
And this is *real* net neutrality, not the compromised US kind:
Article 9. The party responsible for the transmission, switching or routing of data has the obligation of granting equal treatment to every data package, with no distinction by content, origin and destination, service, terminal or application; any traffic discrimination or degradation that does not arise out of the technical requirements necessary to the adequate provision of services is prohibited, in accordance to further regulation.
It also comes out strongly in favor of guaranteeing access to the Internet, respect for personal privacy online, and against any kind of “three strikes” laws cutting off users for alleged copyright infringement:
Article 7. Access to the Internet is essential for the exercise of citizenship, and the following rights are secured to its users:
I – the non-violation and secrecy of communications on the Internet, except under judicial order, in the hypotheses and form established by law, for criminal investigations or the gathering of evidence for criminal procedures;
II – the non suspension of Internet connections, except for debts directly related to their use;
It has plenty to say on the vexed issue of keeping users' access logs, including:
Article 10. The storage and disclosure of the connection logs and Internet application access logs regulated by this law must preserve intimacy, private life, the reputation and image of the parties directly or indirectly involved.
§1 The Internet service provider responsible for the storage of logs will only be constrained to disclose the information that allows the identification of the user under a judicial order
Nor is ISP liability overlooked:
Article 14. Internet connection providers shall not be responsible for damage arising from content generated by third parties.
Article 15. Except otherwise established by law, Internet application providers can only be responsible for the damages caused by content generated by third parties if, after receiving a specific judicial order, they do not take action to, in the context of their services and under the established time frame, make unavailable the infringing content.
And the crucial issue of judicial requests for logs is also spelled out in detail:
Article 17. Interested parties may, for the purpose of gathering evidence in civil and criminal proceedings, of either accidental or autonomous nature, request a judge to order the party responsible for storing Internet service access logs, or connection logs, to disclose these logs.
Sole Paragraph. Without prejudice of other legal requirements, the application shall contain, under penalty of not being admissible:
I – solid evidence of the occurrence of an illegal act;
II – a motivated justification for the utility of accessing the requested logs, for the purposes of investigation or the gathering of evidence;
III - the period that the logs refer to.
Article 18. It is the obligation of judges to take the measures necessary to guarantee the secrecy of the information received, and the preservation of the intimacy, private life, honor and image of Internet users. Judges are capable, for that purpose, to constitute the information as secret, including with respect to requests for the storage of logs.
All-in-all, it's a remarkable document, forming in effect an "anti-ACTA" that guarantees many of the protections for Internet users that ACTA seeks to eradicate, and forbids repressive measures that ACTA aims to introduce.
However, two big questions hang over the draft. First, whether it will be passed by the Brazilian Congress in its present form (or at all), and, second, how it can be squared with the harsh penalties proposed in the “cybercrime” bill mentioned above if that too comes into force. But whatever happens, Brazil has already shown leadership by drafting a bill that dares to question and oppose the copyright maximalist orthodoxies underlying ACTA – something signally lacking in other countries.