[Infowarrior] - Europe Learns The Truth(s) About ACTA

[Richard Forno]

  Europe Learns The Truth(s) About ACTA
  By Monika Ermert for Intellectual Property Watch @ 9:03 pm
http://www.ip-watch.org/weblog/2010/04/07/europe-learns-the-truths-about-anti-counterfeiting-trade-agreement/

The truth about the Anti-Counterfeiting Trade Agreement (ACTA) is  
different depending on which side you are on.

At a hearing organised by the Liberal Party Group in the European  
Parliament in Brussels yesterday Canadian law professor and ACTA  
expert Michael Geist challenged the position of the European  
Commission and other negotiating parties to the agreement that ACTA  
would not lead to substantive law changes in the ACTA countries and  
also explained what possible long-term effects could result from the  
heavily debated treaty. Critics in Europe go one further in their  
rejection of ACTA which does undermine according to them democratic  
processes in the EU and EU member states.

The “truth about ACTA,” according to Geist, is first and foremost that  
it is not what it is said to be. “It is essential to recognise that  
ACTA is not the norm,” Geist said, countering the argument of  
negotiating parties who have pointed out tirelessly that trade  
agreements never were negotiated openly.

Geist: Not about Trade, but about IP

“ACTA is not about trade, but about IP,” said Geist, who added the  
assertion that ACTA is not confined to enforcement of existing laws  
only. “The claims that this is solely about enforcement, I am sorry,  
but that is not true.” Examples he gave of necessary changes are  
higher standards with regard to banning anti-circumvention technology,  
the protection of “labels” on products and packages, notice and take- 
down provisions for providers that many countries do not already have  
or statutory damages so far only in use in the US. “Statutory damages  
so far were mainly used by the way against non-commercial users,”  
warned Geist in a challenge to the notion put forth by ACTA  
negotiators that non-commercial users would be off the hook.

Raising standards in copyright protection is one clear goal of ACTA as  
Geist reads the leaked draft text of the agreement that is the only  
version available to the public. One example, according to him, is the  
re-introduction of anti-circumvention legislation via ACTA that had  
not received global consensus at the World Intellectual Property  
Organization (WIPO) when the so-called internet treaties were  
negotiated in the 1990s. Now the US Digital Millennium Copyright Act  
would become the standard. Geist said he is afraid of similar effects  
from ACTA with regard to internet cut-offs in the style of “three- 
strikes-and-you’re-out.”

While the cut-offs were not compulsory in ACTA they could be  
referenced by the ACTA partners once in the text and become a standard  
over time. “You will not get the three strikes today,” he said, but  
rather in a few years. Again, it was the truth, said Geist, that the  
three-strikes-measure was only in a footnote and only mentioned as an  
example for conditions ISP had to accept in order to not be hold  
liable for copyright infringement of their customers on the net. “But  
it is the only measure mentioned,” said Geist.

Malcolm Hutty, president of EuroISPA, warned in his panel presentation  
in Brussels that internet service providers must be protected from  
liability in order to have the rights of users like free access to  
information and privacy protected. Measures internet service providers  
might be asked to implement to qualify for a safe harbour were  
throttling of bandwidth, the blocking of IP addresses, the filtering  
or monitoring of traffic and the mentioned cut-offs from access to the  
communication network. ISPs facing unlimited liability because they  
did not implement such measures certainly had no option according to  
Hutty. “If that is the case, this is commercially mandatory, even if  
it is not legally mandatory,” he said.



EU negotiator Luc Devigne (on left) with Canadian law professor  
Michael Geist in Brussels Photo credit: Monika Ermert

Devigne: ACTA Fears Based on Myths

Luc Devigne, European Commission lead negotiator for ACTA, reiterated  
once more the Commission’s mantra that the Commission would not go  
beyond the acquis communautaire, the harmonised legislation of the  
Union. To Hutty, Devigne said the Commission would not accept a  
compulsory three-strikes-rule, or even one that would make internet  
cut-offs commercially mandatory.

The truth about ACTA told by Geist was rejected completely by Devigne.  
“I totally disagree with all examples you gave,” the EU official said.  
ACTA is “only about enforcement, I stand by that,” he underlined,  
listing all the things the EU would not agree to in the negotiations  
because there was no harmonised legislation. “There will be no change  
in ISP liability,” he said, and notice and take-down is only in place  
in some EU countries. Also there is “no specific legislation for  
camcording in European legislation so we won’t accept it.” Another  
example he gave was criminalisation of patent infringement, where  
again there is no EU law and therefore “we would not accept it.”

Yet there are some problems Devigne had to acknowledge with regard to  
the EU acquis. Several members of the EU Parliament asked, for  
example, what the line of negotiation was the Commission was taking  
with regard to the definition of “commercial,” a term critical in the  
European debate about criminal sanctions. Devigne said as there was no  
harmonised position in the EU on this, the Commission did not take a  
stance in the negotiations. Criminal sanctions also not harmonised in  
the Union accordingly are negotiated by the EU Presidency representing  
the European Council.

As soon as the draft ACTA text is published – something the EU is  
proposing at the next meeting round in New Zealand next week – his  
life will become easier, Devigne said. That’s because he would not  
have to deal any longer with myths surrounding ACTA.

Geist doubted that Devigne’s life would become easier with the  
transparency problem solved. Analyzing the discussion, he said the two  
sides obviously see two “totally different things” when reading the  
same text. For instance, saying that a three-strikes model was not  
there after the leaked draft version of April contained the respective  
footnote made Devigne’s expectation rather unlikely, Geist said.

ACTA – counterfeiting at all or counterfeiting only?

Members of Parliament – who attended the hearing in considerable  
numbers – were highly critical of the ACTA negotiation so far. “If  
three strikes are not compulsory, why are they in the text at all?”  
asked Liberal Party Member Sophie in’t Veld. Parliament has already  
said that they does not want internet cut-offs. She also questioned  
the whole process of secret negotiations and accused the Commission of  
seeing democratic processes as a burden.

The European Parliament in an earlier resolution not only asked for  
full access to all ACTA documents, but also to limit ACTA’s scope to  
anti-counterfeiting, the very aspect where ACTA according to Geist  
would “ironically” not lead to a much better situation. Limiting ACTA  
to counterfeiting could in fact mean that the chapter on digital  
environment and copyright would have to be taken out, something that  
had made Trade Commissioner Karel De Gucht nervously ask MEPs not to  
ask for in their resolution. “We stand by this,” said Alexander  
Alvaro, Liberal Party member and one of the organisers of yesterday’s  
hearing.

Devigne was asked by several participants in the hearing, including  
Pirate MEP Christian Engström, what kept the Commission from  
implementing the Parliament’s resolution. He answered that one had to  
read the whole resolution which also asked for “continuing the  
negotiations.” How this EU power struggle is developing is still open,  
but there are observers who fear that ACTA is undermining EU  
democratic processes. Not only the resolution by the Parliament seems  
to have been made a piece of interpretation, but information to  
national parliaments – not to mention the public – has been non- 
existent at best, and possibly “deceptive” in more severe cases,  
according to some ACTA critics.

Geist is heavily concerned with a series of other long-term effects.  
The shift of venues from the IP-competent fora to ACTA, for example,  
could slow down or sideline other projects like the WIPO treaty for  
the visually impaired or the Development Agenda. ACTA with a whole set  
of bodies of its own might in fact supersede WIPO, where there has  
been an intensive, and much more open debate on exemptions and  
limitations to IP rights in recent years, said Geist. He criticised  
the “country-club approach” of ACTA that would exclude the very  
countries that were the target of complaints with regard to  
counterfeiting.

To make ACTA negotiations transparent therefore was not the final  
goal, said Geist. Substantive debate had to follow and he still  
thought that a multi-lateral approach should be pursued. If  
parliaments like the EU Parliament or NGOs like the InternetNZ and  
other organisers of the counter-conference to ACTA round nine in New  
Zealand next week will be able to change or even stop ACTA is  
doubtful, said Geist. What could stop ACTA is disagreement among the  
ACTA country-club members, and there is still some of that.