ACTA – Frequently Asked Questions

By EDRi · February 1, 2012

This article is also available in:
Deutsch: [Frequently Asked Questions zu ACTA |]
French:[ FAQ sur l’ACTA par Joe McNamee, coordinateur à l’EDRI |]
Romanian:[ Întrebări frecvente despre ACTA |]

1. Does ACTA require countries to impose “three strikes” rules?

Countries that ratify ACTA are required to encourage “cooperation” between
private companies to enforce the law. Such cooperation is intended to be
extensive, including the disconnection of end-users on the basis of
decisions taken by private industry. This is proven by a leaked document
published by the European Parliament itself (footnote 6, page 4):

“An example of such a policy is providing for the termination in
appropriate circumstances of subscriptions and accounts in the service
provider’s system or network of repeat infringers”

2. So companies are not obliged to impose repressive measures against

Companies are threatened with criminal sanctions if they derive “indirect”
economic benefit from infringements and/or if they are deemed (possibly as a
result of failing to take repressive measures, for example) to have “aided
and abetted” one or more infringements. So, they can either take repressive
measures, or they are welcome to take these risks, if they prefer.

3. But is ACTA completely in line with existing EU law?

Criminal sanctions for IPR enforcement are not part of EU law – in fact, the
only proposal ever made failed. Moreover, the criminal sanctions in ACTA go
beyond what was discussed in the failed proposal. For example, the European
Parliament demanded exceptions for private copying and “fair use” for
activities such as criticism, comment, news reporting, teaching, scholarship
or research. There are many other points where the compliance with EU law is
dubious – for example, the almost limitless damages that can be imposed
under ACTA based on retail price rather the actual damage incurred.

4. But still, is it good to create a “level playing field” of implementation
of IPR law?

ACTA seeks to export parts of EU law, in the unexplained assumption that
they will have the same impact elsewhere, in completely different legal
environments. For example, ACTA requires extensive transmission of personal
data of consumers to rights holders and unspecified “voluntary” policing by
rights holders. Within the EU, the E-Privacy Directive and the general Data
Protection Directive create a context which allows a degree of protection
for consumers. Creating dangers without meaningful safeguards is a risk for
democracy and the rule of law for citizens of our trading partners where
such safeguards either do not exist at all or are more limited. This runs
directly counter to the Treaty on European Union, which requires the EU to
support democracy and the rule of law in its international relations. We
cannot break one law for the sake of imposing another.

5. At least where we are imposing our law on ourselves, there is no
danger, right?

Many of the provisions (access to personal data, for example) in ACTA come
from the Intellectual Property Enforcement Directive (IPRED). These
provisions have caused serious problems in some European countries – such as
in the United Kingdom, where the data were used to coerce and, according to
one member of the House of Lords “blackmail” consumers. Once these
provisions are put into ACTA, the European Union will be under an
international legal obligation not to change them. The European Commission’s
review process for IPRED is scheduled to start after ACTA is scheduled to be
adopted by the European Parliament – i.e. the European Union will decide not
to make significant changes to IPRED before assessing its impact.

6. At a time of economic crisis, surely it is good to promote economic
growth in a trade agreement?

The European Parliament’s independent study on ACTA argues that “there is a
point at which further strengthening IPRs becomes counterproductive and could in fact hamper
The European Commission refused to undertake an impact assessment, so there
is no analysis whatsoever as to whether the very extensive
measures proposed in ACTA are, in the study’s words, “counter productive”.

Similarly, ACTA “encourages” policing of networks by intermediaries (access
providers, web hosting providers, payment providers, search engines,
advertising networks etc). No analysis has been undertaken to assess the
very real danger that this policing activity will be used to keep European
companies out of foreign markets. Worse still, as these are extra-legal
“voluntary” measures, it would be particularly difficult to obtain a ruling
from the World Trade Organisation to fight any such protectionism.

7. But it must be good to establish a benchmark for the world to follow?

The problem is that the closed, secretive nature of the ACTA negotiations,
which deliberately avoided agreed and established multilateral forums, has
created a benchmark in counterproductive diplomacy. As the European
Parliament study says “the major emerging economies, China, Brazil and India
appear not to have been formally invited to participate,” leading India to
champion the cause of Less Developed Countries (LDCs) in the TRIPS council,
where it complained about the “exclusion of a vast majority of countries,
including developing countries and LDCs”.

8. At least, in a globalised world, ACTA will help European online
businesses, won’t it?

ACTA requires states that are party to it to encourage law enforcement by
private companies. Often, these will be in other countries, with different
copyright regimes and different degrees of liability. At any given moment,
therefore, online companies would be at risk of having their service removed
from search engines, payments being blocked by payment service providers,
their domain name (like removed by the company that they paid
to register it (the registrar), the company that manages the registry of
domain names or advertising network – or being blocked by Internet providers
abroad, seeking to protect their businesses from competition.

9. This is all exaggeration – there is no threat to free speech and
democracy, is there?

A conservative member of the German parliament unintentionally put multiple
copyright-protected images on his website. Large numbers of visits to the
page led to a “commercial scale” reproduction of the image. He received an
“indirect economic” advantage by not paying for the images and his service
provider arguably “aided and abetted” the “infringement” by not taking
action against this repeat “offender”. Is he or his Internet provider a
criminal? According to ACTA, they are. This is a threat to free speech and

10. Why are national parliaments and the European Parliament voting on
ACTA – and hasn’t it already been signed, so isn’t the process finished?

ACTA partly falls outside the scope of EU law (the so-called acquis
communautaire). The part that falls outside the scope of EU law (criminal
sanctions) needs to be approved by each Member State. The part that is
inside the scope of the EU can be decided and ratified at EU level. The EU
can only accept or reject the entire text – although there is nothing to
stop it from setting internal guidelines for itself on how it should be
implemented in practice.

Signing an international agreement is not like signing a contract – it
simply opens the decision-making process within a government.

(Contribution by Joe McNamee – EDRi)