At the end of The Hague Conference, the Internet and the public domain are at risk

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 meetings leading up to the June Diplomatic Conference, there were efforts to sort out 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 be 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 unwillingness to address the importance of speech-related torts, despite the fact that membership of 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 favourable 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 intellectual property was included in the convention, in a form stronger than ever. Also noteworthy was the new bracketed language:

"Other registered industrial property rights" will cover a lot of ground.

There are many more details of the negotiations from the URLs given below.

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/