[DC-Trade] EU Committee on International Trade working document "Towards a digital trade strategy"

[Jeremy Malcolm]

Marietje Schaake, who spoke at the IGF's main session on trade and the
Internet last year, is also Rapporteur of the European Parliament
Committee on International Trade, which recently released this working
document:

https://marietjeschaake.eu/en/towards-a-digital-trade-strategy

Some excerpts (at least read the last one):

(p.2) "The EU, as a community of values and the world’s biggest exporter
of services, must play a role in leading this process. To be able to do
that, a more profound discussion is needed about both the content and
process of crafting the rules framing digital trade flows. What issues
should be covered by bilateral or plurilateral trade agreements? What
should be the role of the World Trade Organisation? How can we ensure
free, fair and reciprocal market access for digital goods and services
in third countries? How can we ensure that trade rules actually render
tangible benefits for consumers inside and outside the EU?"

(p.4) "Barriers to the free flow of data, including unjustified forced
data localisation measures, are problematic for each company that trades
internationally. For example, forcing enterprises to establish data
centres within a country as a condition for providing services in that
country does not make sense. A comprehensive prohibition of such forced
data localisation requirements would prevent fragmentation of the
digital world, and would stimulate foreign direct investment. The EU
must have the ability to combat discriminatory, illegitimate and
protectionist measures in third countries, to ensure that European
companies can operate in a fair, predictable environment.

In this context it goes without saying that rules on the processing of
personal data should not, are not and will not be a part of trade
negotiations. "

(p.5) "In some countries, market access is only granted to companies on
the condition that that disclose and hand over to the state the source
codes of the software (or other products) they intend to sell. In
exceptional cases, such as in government procurement procedures in the
field of critical infrastructure, there may be legitimate reasons to
require this. However, as a blanket requirement for market access,
measures requiring source code disclosures are disproportionate.

Likewise, governments may require access to a product’s encryption
technologies as a condition of manufacturing or sale. Trade agreements
could prohibit signatory governments from forcing companies to disclose
or transfer details of the cryptographic technology used in their
products, as a condition of manufacturing, selling, or distributing them
in their country."

(p.5) "However, while international cooperation is key to combat
counterfeiting, trade agreements are not the place to extend the level
of protection for rights holders by providing for more extensive
copyright enforcement powers. The defeat of the ACTA-agreement has
demonstrated that there is no political will to double down on copyright
enforcement, especially in the digital environment. Similarly, there may
be legitimate reasons to weigh the context in which IP protected goods
will be used, to avoid people in developing economies from being forced
to pay excessive prices. Also, internet service providers should not
bear liability for the data they transmit or host through their services
to an extent that would necessitate prior surveillance or filtering of
such data."

(p.7) "Trade agreements can be used as a lever to improve digital rights
in a number of countries. Including provisions on net neutrality, forced
data localisation, encryption and intermediary liability in trade
agreements can have a strongly beneficial impact on the protection of
freedom of speech in particular.  For instance, telecommunications
chapters in trade agreements could require member states to ensure that
business from other states should not be discriminated against when they
transmit lawful network traffic. Digital trade rules can put the
principle of intermediary liability on a stronger footing, by explicitly
specifying that online service providers are not liable, under certain
conditions, where services of intermediaries are used by third parties
for infringing activities.

Digital rights have a long tradition of being discussed in open
multilateral stakeholder meetings, such as the Internet Governance
Forum. A transparent process will be crucial in order to discuss topics
that touch upon digital rights issues in trade negotiations. Given the
importance of digital trade for our economies and societies it is
crucial to demand from partners at least the same level of transparency
as the EU in recent trade negotiations. Compared to other trading
partners, the EU has for instance released its negotiation mandate for
the CETA and TTIP negotiations, delivered systematic and comprehensive
ex-ante studies as to the effects of these treaties, made position
papers and negotiation text available online, while negotiators have
extensively briefed democratically elected representatives on the state
of negotiations. Transparency and stakeholder engagement are a necessity
in general, but will be crucial to make sure civil society, technology
experts and other stakeholders can share the knowledge and perspectives
lawmakers and negotiators need for future proof policies."

-- 
Jeremy Malcolm
Senior Global Policy Analyst
Electronic Frontier Foundation
https://eff.org
jmalcolm at eff.org

Tel: 415.436.9333 ext 161

:: Defending Your Rights in the Digital World ::

Public key: https://www.eff.org/files/2016/11/27/key_jmalcolm.txt
PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122


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