Dark clouds loom over piracy talks
Trade agreement championed by the Commission is being criticised by internet providers as well as civil liberties groups.
Rarely has Europe embarked on international negotiations that have provoked as much fear and suspicion as those launched in 2007 for an anti-counterfeiting trade agreement (ACTA).
The ACTA negotiations are supposed to lead to an agreement on improving global standards in the enforcement of intellectual property rights (IPRs). The EU, the United States, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore and Switzerland are participating in the talks.
The agreement will cover both counterfeiting and piracy, with a dedicated chapter on how IPRs should be protected on the internet. ACTA will cover both ‘tangible’ goods, such as pharmaceuticals, cosmetics, digital music and films. The negotiations are supposed to be finalised by the end of 2010.
The European Commission has been one of ACTA’s biggest supporters, arguing that piracy and counterfeiting undermine the EU’s economy and that some counterfeit products (notably pharmaceuticals) are a threat to public health.
But the negotiations have provoked vociferous protests from civil liberties groups, which fear that ACTA may include tough anti-piracy provisions that impinge on internet users’ rights.
Internet service providers (ISPs) are alarmed, too, fearing that they could be forced into policing the internet, or made liable for internet users’ behaviour.
Threat to business
EuroISPA, an association representing more than 1,700 ISPs, including Google and Microsoft, has said that some measures under discussion in the ACTA negotiations would “threaten the protection granted to online businesses by the EU” and would “create a serious danger of undermining and restricting the open innovative space that lies at the very heart of the internet’s success”.
A coalition of more than 80 civil liberties and open-internet groups published a joint letter to the EU in December warning that ACTA could “seriously hinder European innovation in the digital single market while undermining fundamental rights and democracy at large”.
The concerns have been fuelled by documents leaked from the negotiations. A Commission document, dated 30 September, revealed that the US wants ISPs to be held liable for internet piracy unless they agree to “put in place policies to deter unauthorised storage and transmission of IP [internet protocol] infringing content”. This runs counter to existing EU law, which grants ISPs broad protection from liability. The US has proposed that ISP “policies” could include shutting off users’ internet access after they have received prior warnings. This is similar to the so-called Hadopi system being introduced in France, but could contradict an EU telecoms law agreed last year.
Civil liberties campaigners and MEPs fear that the Commission will use ACTA to bypass the EU’s own legislative process. In 2005, the Commission presented draft EU legislation on criminal sanctions aimed at enforcing IPRs, but it was not adopted by the Council of Ministers and the European Parliament, and the proposal lapsed when the Lisbon treaty entered into force in December.
Criminal sanctions
The governments participating in the ACTA negotiations confirmed in November, however, that the agreement will include a chapter on criminal sanctions, raising the prospect of the Commission fulfilling its original plans without full democratic scrutiny. The Parliament will not have full co-legislative powers over ACTA, as it would for draft EU legislation on IPR enforcement. Instead, it will be able only to approve or reject what has been agreed.
The Commission has been at pains to assuage these concerns, though so far to little effect.
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The Commission has said that the goal of ACTA is to tackle criminal gangs, not “a couple of pirated songs on an iPod music player or laptop computer”. It has pointed out that the Council and the Commission have agreed that the country holding the Council’s rotating presidency, not the Commission, should negotiate ACTA’s chapter on criminal sanctions.
It has also said that, apart from the chapter on criminal sanctions, ACTA will not go beyond the existing acquis communautaire.
But opponents of ACTA say that the Commission’s promise not to go beyond existing EU law is of limited worth because the acquis is confusing and open to interpretation.
An article in the EU’s e-commerce directive from June 2000, for example, frees ISPs from any “general obligation” to monitor their networks for illegal content, but also allows member states to “establish obligations” for ISPs to “promptly…inform the competent public authorities of alleged illegal activities”.
Confusing directive
A directive on IPR enforcement, from 2004, is similarly confusing. It says that courts should be able to force ISPs to release internet users’ personal data, but says that this should be subject to national and EU rules on confidentiality and data protection.
Confusion over ISPs’ obligations led to a dispute between the Spanish telecoms company Telefónica and Promusicae, a Spanish association representing music and film rights-holders, being referred to the European Court of Justice in 2006. The court ruled that member states, at least in civil cases, have discretion to decide when ISPs should be forced to release information. The verdict was hailed as a victory by civil-rights campaigners, but they now fear that it could be overturned through ACTA.
The dark cloud of suspicion that hangs over the negotiations shows no signs of dissipating, whatever assurances the Commission may offer.