ENDitorial: ACTA endgame – The devil is in the detail

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Deutsch: [ ENDitorial: Endspiel um ACTA – Der Teufel steckt im Detail | http://www.unwatched.org/node/2170]

The last week has seen a flurry of activity surrounding ACTA, with the leak
of the latest negotiating text, as well as the adoption of a Written
Declaration by the European Parliament.

Some parts of ACTA remain very problematic, such as the text related to
statutory damages. Also, the text on the liability of online intermediaries
and the extent to which they will be expected to police their clients is now
shorter, but less clear than ever before.

The current text reads as follows:
“Each Party shall endeavor to promote cooperative efforts within the
business community to effectively address (US: copyright and related
rights)(EU/J: intellectual property rights) infringement while preserving
legitimate competition and consistent with each Party’s law, preserving
principles relating to freedom of expression, fair process, and privacy,
(EU: among other (US: fundamental) principles).”

The first point to note is that this is ostensibly a trade agreement. As a
result, every party can claim a legitimate interest in ensuring the
implementation of trade-related provisions (such as “cooperation” between
ISPs and rightholders) and could, therefore, demand enforcement of this to
some degree. However, no party would have an interest in, or a legal means
of, ensuring the implementation of fundamental rights in other
jurisdictions. As a result, the obligations part of this text is enforceable
by parties, while the rights part is not, even though both seem equal in the
text.

Secondly, this approach, where ISPs are coerced into a policing role creates
an entirely unpredictable environment. Due to the ongoing vertical
integration, it is impossible to tell how “cooperation” or surveillance ISPs
will feel motivated and justified to undertake. Already we see the British
media provider/ISP Virgin planning to undertake deep packet inspection – a
“beta test” that will give heart to every totalitarian regime in the world –
on a test basis. If ISPs are blocking, filtering and carrying out
surveillance to protect Mick Jagger, what will the EU say to Iran when it
does the same thing to protect, as it would see it, the functioning of the
state? Furthermore, and these are in EU law already, but with the limited
privacy and human rights protection that the EU offers, the damages and
intermediary injunctions proposed in the current text will help encourage
ISPs to “volunteer” to collaborate with rightsholders.

This gives rise to a third issue – where does this leave the European
Union’s legal obligations to promote and protect democracy and the rule of
law in its international relations. Can active support for privatisation of
law enforcement in third countries be considered compatible with the
obligation in the Treaty on European Union to cooperate in all fields of
international relations, in order to consolidate and support democracy and
the rule of law?

The European Parliament’s Written Declaration is a huge step forward,
setting clear limits for the European Commission with regard to
harmonization, due process, coercion of ISPs to “voluntarily” undertake
blocking/filtering/three strikes, etc. Importantly, it also asks for “all
documents related to the ongoing negotiations publicly available” rather
than simply the most recent texts. Preparatory texts will be essential for
the Parliament and the public at large, to understand the real meaning of
the Agreement.

The weakening of some of the most egregious elements of ACTA’s disregard for
the rights of citizens is very welcome – but the devil is still in the
detail. The fight goes on.

Virgin Media to trial piracy-detection software (17.01.2010)
http://technology.timesonline.co.uk/tol/news/tech_and_web/the_web/article6989510.ece

Treaty on European Union
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:EN:PDF

Written Declaration 12 on the lack of a transparent process for the
Anti-Counterfeiting Trade Agreement (ACTA) and potentially objectionable
content
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+WDECL+P7-DCL-2010-0012+0+DOC+PDF+V0//EN&language=EN

Adoption of anti-ACTA declaration – “a big victory” (7.09.2010)
http://www.numerama.com/magazine/16698-adoption-de-la-declaration-anti-acta-une-grande-victoire.html

European Parliament vs. ACTA: Rejection is the only option (8.09.2010)
http://www.laquadrature.net/en/european-parliament-vs-acta-rejection-is-the-only-option

(Contribution by Joe McNamee – EDRi)