In the  discussion about the liability of ISPs and whether and how ACTA provides for it, one clause that deserves to get the spotlight thrown more sharply onto it is   Article 2.5: "Provisional Measures".

 

This clause provides for a court to order the blocking of websites, and actions against ISPs on the application of the rights-holders.  In the UK, we have already had this debate, since there is a clause rather like this in the Digital Economy Act. ACTA would appear to taking from the DE Act.

The DE Act  clause  was

put there following rights-holder lobbying for measures to take account of future technological developments. Indeed, there is evidence that the clause was written by the British recorded music industry lobby group known as the BPI (see my previous articles on this topic).  It was deeply unpopular and provoked a public protest, and is in the law because the previous Labour regime whipped its members to vote for it in the dying days of the last discredited Parliament.

 

The UK  clause will have to go to the European Commission  for a compliance check against EU law and will again be put  before the UK Parliament.

 

The ACTA provision in Article 2.5 applies to both websites and ISPs. What is not clear in  ACTA  Article 2.5 is the circumstances  under which action could be taken against ISPs and exactly what that action could consist of. What does "prevent any imminent infringement of an intellectual property right" mean  in the ISP context? Does it just mean that the court could order the  ISP  to filter out the alleged infringing websites, pages or domains? Could it be used to prevent the ISP from carrying out its business? Will it result in an increased liability for ISP, who may end up over-blocking in order to comply with the injunction?   

 

ACTA Article 2.5 appears to say that courts may order such measures even before proceedings begin. The ACTA further provides for seizure of goods. This  is not just about impounding some badly recorded DVDs at a car-boot sale. It  could refer to web  servers,  and its implications are serious. P2P tracker sites could be immediately terminated by such action.  The implications of this leading to censorship must be considered.

 

But we must consider what it means for next generation technologies. How far could it be used to kill new developments before their inventors have  a chance to develop a business proposition - if all a rights-holder has to do is to say that a techology could be used to infringe copyright?  

 

In the context of the EU aquis communitaire,  ACTA Article 2.5  would need to be examined to see exactly what legal changes are necessary. Such changes  would not only apply to copyright, but to all intellectual property rights covered by ACTA.                                                       

 

 

 ACTA Leaked draft of 25 August 2010

 

ARTICLE 2.5: PROVISIONAL MEASURES

[EU/CH/J: 1. Each Party shall provide that its judicial authorities shall have the

authority, at the request of the applicant, to issue a provisional measure intended to

prevent any imminent infringement of an intellectual property right. Such provisional

measures may also be issued under certain conditions in relation to an intermediary

whose services are being used by a third party to infringe an intellectual property right.

Each Party shall also provide that provisional measures may be issued, even before the

commencement of the proceedings on the merits, to preserve relevant evidence in

respect to the alleged infringement.]

 

UK Digital Economy Act

17 Power to make provision about injunctions preventing access to locations on

the internet

(1) The Secretary of State may by regulations make provision about the granting

by a court of a blocking injunction in respect of a location on the internet which

the court is satisfied has been, is being or is likely to be used for or in connection

with an activity that infringes copyright.

 

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2010) ACTA & web blocking - measuring the threat    http://www.iptegrity.com 9 September 2010