ENDitorial: ACTA revealed, European ISPs might have a big problem

By EDRi · November 4, 2009

This article is also available in:
Deutsch: [ENDitorial: ACTA enthüllt, europäische Internet-Service-Provider dürften ein großes Problem haben | http://www.unwatched.org/node/1575]

Negotiations on the highly controversial Anti-Counterfeiting Trade Agreement
have started in Seoul, South Korea. This week’s closed negotiations will
focus on “enforcement in the digital environment.” Negotiators will be
discussing the Internet provisions drafted by the US government. No text has
been officially released but as Professor Michael Geist and IDG are
reporting, leaks have surfaced. The leaks confirm everything that we feared
about the secret ACTA negotiations. The Internet provisions have nothing to
do with addressing counterfeit products, but are all about imposing a set of
copyright industry demands on the global Internet, including obligations on
ISPs to adopt Three Strikes Internet disconnection policies, and a global
expansion of DMCA-style TPM laws.

As expected, the Internet provisions will go beyond existing international
treaty obligations . We see three points of concern.

First, according to the leaks, ACTA member countries will be required to
provide for third-party (Internet Intermediary) liability. This is not
required by any of the major international IP treaties – not by the 1994
Trade Related Aspects of IP agreement, nor the WIPO Copyright and WIPO
Performances and Phonograms Treaty. However, US copyright owners have long
sought this.

Second and more importantly, ACTA will include some limitations on Internet
Intermediary liability. Many ACTA negotiating countries already have these
regimes in place: the US, EU, Australia, Japan, South Korea. To get the
benefit of the ACTA safe harbors, Internet intermediaries will need to
follow notice and takedown regimes, and put in place policies to deter
unauthorized storage and transmission of allegedly copyright infringing

IDG reports that: “The U.S. wants ACTA to force ISPs to “put in place
policies to deter unauthorized storage and transmission of IP infringing
content (for example clauses in customers’ contracts allowing a graduated
response),” according to the (leaked European) Commission memo.” The US
government appears to be pushing for Three Strikes to be part of the new
global IP enforcement regime which ACTA is intended to create – despite the
fact that it has been categorically rejected by the European Parliament and
by national policymakers in several ACTA negotiating countries, and has
never been proposed by US legislators.

European citizens should be concerned and indignant. As reported, the ACTA
Internet provisions would also appear to be inconsistent with the EU
eCommerce Directive and existing national law, as Joe McNamee, the European
Affairs Coordinator of EDRi notes:

“The Commission appears to be opening up ISPs to third party liability, even
though the European Parliament has expressly said this mustn’t happen,”
McNamee said, adding that ACTA looks likely to erode European citizens’
civil liberties.”

Last, but by no means least. ACTA signatories will be required to adopt both
civil and criminal legal sanctions for copyright owners’ technological
protection measures, in line with the US-Korea (and previous) FTA
obligations. They will also be required to include a ban on the act of
circumvention of technological protection measures, and a ban on the
manufacture, import and distribution of circumvention tools.

Original article: Leaked ACTA Internet Provisions: Three Strikes and a
Global DMCA (3.11.2009)

Trade Talks Hone in on Internet Abuse and ISP Liability (3.11.2009)

The ACTA Internet Chapter: Putting the Pieces Together (3.11.2009)

EDRi-gram: European Parliament wants more transparency on ACTA (26.03.2009)

(Contribution by Gwen Hinze – EDRi-member Electronic Frontier Foundation