Leaked ACTA text confirms suspicions

By EDRi · February 24, 2010

This article is also available in:
Deutsch: [Durchgesickerter ACTA-Text bestätigt Verdacht | http://www.unwatched.org/node/1720]

The text of the digital chapter of the Anti-Counterfeiting Trade Agreement
was published on 21 February 2010, following news articles from IDG News
Service issued a few days before.

The text of the draft digital chapter confirms that there are several
problems with the draft agreement and many of the assurances given on the
topic were somewhat “economical with the truth”.

These “economies” were on display again during a discussion between the
Commission Head of Unit responsible for the dossier, Luc Devigne and the
International Trade Committee of the Parliament. Mr Devigne explained that:
– there is no ACTA text, so there is nothing that the Commission could share
with the Parliament
– ACTA is about enforcement and not about changing substantive law

Mr Devigne was also quite economical with answers. He failed to answer
questions on:
– the failure to implement the relevant provisions of the Lisbon Treaty with
regard to transparency
– the fact that US lobbyists had access to the ACTA documents but not the
European Parliament
– if ACTA would require ordinary citizens to be excluded from the scope of
certain border measures or would simply allow for this to be the case
– if ACTA would lead to criminal sanctions, including prison, for people
that recorded films in cinemas
– if ACTA would criminalise an individual who, for example, created an open
source programme to open all documents on all formats, thereby (without
commercial interest) circumventing technical protection measures.

He also repeated the meaningless statement that “ACTA is not meant to
undermine civil liberties”, which simply means that this was not the
original intent of the negotiations and does not, quiet obviously, exclude
this possibility.

Unsurprisingly, the unclear, ambiguous and “economical” answers lead to an
angry reaction from Parliamentarians. The little information that MEP Carl
Schlyter (Greens, Sweden) was able to glean from Mr Devigne’s answers was,
he said, contrary to information that had previously been provided by
Commissioner De Gucht. Consequently, he requested that the Commissioner
attend future discussions instead of Devigne.

EDRi has prepared a public FAQ on ACTA in order to better explain why the
agreement is endangering human rights in Information Society.

EDRi explains that the treaty is not just about counterfeiting, because it
also covers a far greater range of issues, including mandated penalties for
non-commercial copyright infringement, worldwide Internet regulation and
world trade in generic medicines.

The leaked document talks mostly about copyright infringement. Although
the document is vague on whether non-commercial infringements are included,
provisions from the Border Measures section previously made public indicate
that the definition of counterfeiting will change current international
norms and expand the scope beyond catching organised criminal networks
smuggling goods that this agreement is purported to target.

The leaked ACTA chapter includes a “three-strikes” Internet disconnection
approach for alleged repeating copyright infringers. The document makes
clear that the US negotiators intend that ISPs would be required to adopt
threes strikes Internet disconnection policies in order to get the benefit
of “safe harbours” or limitations on lSPs’ liability for copyright

The proposal would require countries to adopt criminal measures, which are
outside the body of the harmonised EU legislation. When read alongside the
criminal measures provisions made public earlier in the ACTA negotiations,
many concerns arise about the increased criminalisation of activities
online. Without robust proportionality principles and with insufficient
consideration of civil liberties and human rights protections, ACTA is a
threat to ordinary behaviour on the Internet. The ineffective strategy of
deterrence without balance undermines the legitimacy of the law.

After the new chapter of ACTA has leaked, an Opinion from the European Data
Protection Supervisor (EDPS) explained that the current three strikes
proposals may be incompatible with the current data protection requirements.

The EDPS complained that he was not involved by the European Commission in
the debates on this treaty and declared: “Whereas intellectual property is
important to society and must be protected, it should not be placed above
individuals’ fundamental rights to privacy and data protection. A right
balance between protection of intellectual property rights and the right to
privacy and data protection should be ensured. It is also particularly
crucial that data protection requirements are taken into account from the
very beginning of the negotiations so as not later on having to find
alternative privacy compliant solutions.”

The next round of negotiations will take place in New Zealand on 12-16 April
2010. Parties agreed tentatively to a 5 day round, covering a detailed
discussion on Internet, civil, customs and penal measures.

Leaked ACTA draft reveals plans for internet clampdown (19.02.2010)

Leaked ACTA chapter on Internet

EDRi FAQ on ACTA (22.02.2010)

Opinion of the European Data Protection Supervisor on the current
negotiations by the European Union of an Anti-Counterfeiting Trade Agreement
(ACTA) (22.02.2010)

Anti-Counterfeiting Trade Agreement: EDPS warns about its potential
incompatibility with EU data protection regime (22.02.2010)

(contribution by Joe McNamee – EDRi)