ACTA: European Commission negotiation failures

The documents made public today provide an extensive guide to the failures of the European Commission to negotiate
effectively on behalf of European citizens and businesses.
They also provide an insight into the ways in which the Commission’s public relations “spin”; seeks to hide these failures.

Meeting notes Paris 2008
Meeting notes Rabat 2009
Meeting notes Seoul 2009
Meeting notes Guadalajara 2010

What the EC asked for:	What the EC got:
Transparency	Some transparency for US companies, but nothing meaningful for European citizens and businesses.
Transparency	EU Presidency actively choosing not to brief EU Member States.
No mandatory enforcement of intellectual property law by ISPs	Mandatory obligations on states party to ACTA to encourage enforcement of intellectual property law by ISPs.
No change to substantive copyright law	A further complication of EU law on copyright exceptions and limitations.
Prioritisation of health and safety issues in international cooperation	Nothing.
Adequate environmental protection in the disposal of seized material	A “safeguard” which creates no change to the status quo. In essence, nothing
Definitions of key terms in ACTA	Nothing
Protection for geographical indications	Nothing[1]

1. The Commission claims that the ACTA process was transparent.The documents show this to be false.

From the earliest stages, the Commission made weak and unsuccessful efforts to have a transparent process.[2] Despite support from Switzerland, Australia, New Zealand and Canada, the EU was unable to gain any meaningful concessions. The EU ultimately agreed to work to keep all versions away from the public.

The Commission also shows itself to have been completely out-manoeuvred by the United States. Not alone did it fail to negotiate any meanings concession, it haplessly points[3] out in several of the documents that the agreement on confidentiality that it accepted created a huge advantage for the US. Specifically, it permitted the US to show ACTA documents to “selected stakeholders” under non-disclosure agreements while the EU had no equivalent mechanism, thereby giving a big advantage to the stakeholders selected by the US authorities.

2. Failures of transparency extended to the Council Presidency

In the notes from the Seoul meeting, the Commission reports that the Swedish Presidency of the European Council proposed
not giving an oral debriefing to the Member States, with the explicit intention of preventing Italy and the United Kingdom from
raising concerns about penal sanctions for online infringements. The notes from the Commission indicate shock at this level of
undemocratic behaviour, saying that “Sweden even proposed not having an oral debriefing…to avoid giving IT and UK
the chance to raise the matter”.[4]

3. The proposal on “three strikes” wa s not universally rejected, as the Commission has claimed

The European Commission initially claimed[5] that no proposal on “three strikes”
(disconnection of users on the basis of accusations of infringements) had ever been made in the context of the
ACTA discussions. Subsequently, when evidence of this assertion being false became public[6], the European Commission
accepted that the proposal had been made but that it had been flatly rejected because “most” of the
negotiating partners rejected it. There is no obvious trace of such a rejection in the notes from the meetings –
the Commission itself comments that this issue is subject to debate in some Member States.[7] In a second comment it,
points not to objections to disconnection but to these disconnections being a precondition for ISP liability protections.[8]

The notes also directly contradict statements by Commissioner De Gucht. In March 2012 [9], he claimed that ACTA “will
not subcontract the functions of the police to private internet service providers”. The fact that the proposals call
for “enforcement by ISPs” is explicitly acknowledged in the notes. The Commission’s only reservation was
that “such an enforcement policy by ISPs should not lead to a general obligation to monitor the information that they
transmit or store.[10]

Instead under ACTA, the ISPs would have to decide (faced with the threat of criminal sanctions
if they derive “indirect” economic benefit[11] from infringement and the threat of virtually unlimited damages
payments[12]) and under pressure from governments obliged by ACTA to promote privatised policing, they want to voluntarily
police the Internet and “voluntarily” monitor information they transmit or store and take sanctions against their
customers.

4. The Commission does not believe its own argument that ACTA changes nothing in EU law.

In the US, companies and citizens avail of a copyright exception that allows use of copyrighted material
without the explicit permission of the rightsholder, as long as this is considered a “fair use”.
This permits, for example, the use of copyrighted material for parody, the use of short video clips for illustrative purposes,
copying of data by search engines to permit indexing and so on. Private copying by citizens is also a copyright exception.

One of the biggest competitive disadvantages created by the EU’s regulatory framework is the fact that the
regulation of such exceptions and limitations of copyright is dizzyingly complex. This makes it virtually impossible in
Europe to set up a search engine, a video-sharing website or any business that relies on copyright exceptions and limitations.
This creates a significant competitive disadvantage for EU businesses compared with those based in the USA.

ACTA contains an extremely broad protection of technologies which would prevent, for example, the copying of a
legally obtained file. This clearly makes a nonsense of laws which give users the right to make private copies –
it is little use having the right to make a private copy if legally protected technology is installed to stop the copy
from being made. The Commission explicitly recognised this danger, arguing in its notes that there is “no apparent
possibility to safeguard exceptions to copyright/related rights in case of protection against circumvention”.[13] This change
in the legal framework was explicitly criticised by Canada, New Zealand and Switzerland because this would be,
in the Commission’s words, this is “an issue of substantive law and not enforcement”.[14] This note shows that
the European Commission is fully aware of the fact that it is not telling the truth when it says that ACTA is only about
enforcement and not about substantive law.[15]

Unfortunately, however, at least a year before any revision of the
2001 Directive which created Europe’s chaotic exceptions and limitations regime, the EU agreed to legal protection of
technical protection measures in ACTA removing, in its own words, the “possibility to safeguard” flexibilities
provided for in EU law.

Rather pathetically, having described why the legal protection of restrictive
(and usually proprietary) technologies will undermine usage rights of legally obtained content, the Commission closes that
the EU’s position is to support “compatibility and interoperability between devices”.[16]

5. The Digital chapter: From US incoherence to European vagueness

The documents provide an interesting insight into the development of the digital chapter.
It starts with US proposals for far-reaching requirements and occasionally incomprehensible demands with regard to,
for example, liability provisions being contingent on disconnecting end-users accused of infringements and finishing with a
text which is open to interpretation in line with the original demands but without being as overtly offensive. The original
text was so incomprehensible that the Commission notes proudly that the other negotiation partners asked the EU to try to make
them make sense.[17]

For example, the final text of ACTA is clear about the intention to encourage enforcement by
Internet providers but it whether this should be a requirement for protection from liability is not addressed. ACTA only
specifies that liability protections are possible under ACTA, if the interests of rightsholders are not unduly impacted.

The European Commission’s support for “self-regulatory” enforcement of copyright law
by Internet providers is in direct contradiction to the Commission’s obligations under the 2001
Interinstitutional Agreement between the Commission, Council and Parliament. That legally binding agreement
explicitly bans (in Article 17) the Commission from using self-regulatory tools where fundamental rights are at stake.[18]

6. The EU could not even make an impact with its good proposals

The European Commission proposed
paying particular attention to health and safety concerns in international cooperation provisions.[19] This shows an awareness
of the need (completely ignored in the final ACTA text) to prioritise infringements which endanger human health, rather than
treating downloaded music files with the same degree of importance as counterfeit medicines.

The European Commission also proposed measures to protect the environment when counterfeit goods are destroyed,
following seizure under ACTA measures. This too was ignored, with a typically vague and meaningless ACTA safeguard[20]
that the laws of the country where the destruction takes place must be respected.

7. The comprehensive failure of the Commission negotiators is highlighted time and time again

The European Commission has always avoided addressing the widespread criticisms of the lack of clarity of many of ACTA’s provisions.
The Commission’s notes show us how acutely aware they are of the problem.
In Seoul, the Commission negotiators tried to push for improvements of the agreement by asking for clarifications on
a number of definitions such as “digital environment” and “online service provider”[21]. In yet another
failure to exert enough leverage, these definitions did not find their way into the current text. As we know, the
vague definitions are one of the many fatal shortcomings of ACTA.

The comprehensive failure of the European negotiators is concerning for a number of reasons, and begs the question of what
kind of influence the EU would have in the unelected ACTA Committee if the Treaty passed and was implemented.
It also underlines the fact that this agreement, from beginning to end, was driven by the United States —
the documents were drafted in the image of US copyright law, do not include particular aspects of IP that are
considered important to the European economy, such as Geographical Indicators (described as being “of
great importance” by Commissioner De Gucht[22]), and even on such seemingly trivial aspects, like defining what is
meant by “digital environment” could not be achieved by the European representations. How can Commissioner de
Gucht continue to assert that ACTA is good for the European economy if it failed consistently to make any positive gains for
itself throughout the entire negotiation process?

[1] The US has no domestic law protecting geographical indications. It steadfastly refused, as the EU’s biggest counterpart in
ACTA, to offer any protection on this point. The EU started the ACTA process by insisting that GI’s
be included and finished by saying that they “cannot” be included.
It is unclear whether the Commission believes that its original demand was based on incompetent legal
analysis or whether the outcome is based on incompetent negotiation.

[2] See page 2 of the notes from Seoul, 2009, page 1 of the notes from Rabat and page 4 of the notes from Guadalajara

[3] See page 2 of the notes from Seoul, 2009

>[4] See page 2 of the notes from Seoul, 2009

[5] http://trade.ec.europa.eu/doclib/docs/2011/february/tradoc_147497.pdf

[6] http://www.edri.org/files/acta_disconnection.pdf

[7] See page 3 of the notes from Seoul, 2009

[8] See page 3 of the notes from Seoul, 2009

[9] http://trade.ec.europa.eu/doclib/docs/2012/march/tradoc_149181.pdf

[10] See page 7 of the notes from Seoul, 2009

[11] Article 23, ACTA

[12]Article 9, ACTA

[13] See page 3 of the notes from Seoul, 2009

[14] Page 3 of notes from Paris, 2008

[15] See, for example, the list of answers by the European Commission to written questions by the European Parliament –
http://trade.ec.europa.eu/doclib/docs/2012/february/tradoc_149102.pdf

[16] See page 3 of the notes from Seoul, 2009

[17] See page 1 of the notes from Seoul, 2009

[18] http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2003:321:0001:0001:EN:PDF

[19] See page 2 of the notes from Rabat, 2009

[20] Article 32, ACTA

[21] See page 3 of the notes from Seoul, 2009

[22] Response to Parliamentary question E-5302/10