The US may have failed to export the DMCA, but ACTA will put Europe under more pressure to implement graduated response measures. In the wake of the Telecoms Package, it seeks to re-inforce the copyright provisions in the Package, and to squeeze the EU position a little further.  The test is for the European Parliament to once again stand up for citizens rights.

 

The so-called final version of the ACTA (Anti-counterfeiting Trade Agreement) was released at midday today European time, albeit with at least one key element that has not been finalised.

There are several analyses of ACTA, and many apply to US law. I am beginning to think that perhaps there have been two ACTA conversations - and two slightly different perspectives on ACTA. From a US perspective, it looks like the US has given in. It has failed to get DMCA-like provisions  into ACTA.  Notably Notice and Takedown.

 

From a European  perspective, the US has proved unable to

export the DMCA.. However, maybe it didn't need to do that. Hollywood lobbyists, joined by the international music industry, have been hard at work for a long time, pushing for alternatives that  are a better fit with European requirements.  Namely graduated response.

 

When we consider ACTA under EU law, there is no doubt that one must conclude it refers to graduated response / 3-strikes measures. There are variations on the implementation of graduated response, and I do not think it is possible to specify such measures in an international treaty, because each individual nation will have its own legal system and a slightly different requirement for implementation.

 

However, the general principles are covered by the ACTA  - graduated response is ‘an expeditious remedy to prevent infringement'. It provides a ‘deterrent to further infringement'. It addresses the ‘unlawful use of means of widespread distribution for infringing purposes'. This convoluted phrase is almost certainly intended to mean P2P.

 

"Each party shall promote cooperative efforts"  - I simply draw your attention to the Telecoms Package which says  ‘national regulatory authorities may promote cooperation' .

These cooperative efforts must "address copyright infringement whilst preserving legitimate competition"  When one looks at the current policy agenda in the EU for Internet copyright enforcement, the only policy on the table is graduated response, which is to be implemented by making the ISPs co-operate with the rights-holders. 

 

The issue is that the lawyer-lobbyists  advising in regard to Internet copyright enforcement are very skilled at disguising the intention of the provisions they draft. We are used to this in Europe, having seen the Telecoms Package go through as it did.

 

The possible inclusion of trademarks is problematic for EU law.  This is one of the aspects that has not been finalised in the so-called Final ACTA draft text. Trademarks were not included in the Telecoms Package, which is specific to copyright. It is almost certainly intended as an attack on eBay, in light of the law suits against eBay by  luxury goods and cosmetics firms.

 

Point 4, which relates to data protection  can also be interpreted in respect of graduated response. "Order an online service provider to disclose expeditiously to a right-holder information sufficicient to identify a sbuscriber" - this means ISPs can be asked to give users personal contact data to rights-holders. But the key to it is in words "whose account was allegedly used for infringement" . This is a positive reference to graduated response. Moreover, it pushes the boundaries of the law, such that personal data can be disclosed against a mere allegation.

 

ACTA downgrades fundamental rights under EU law, to ‘fundamental principles' and mentions one which does not exist  - namely ‘fair process'. It is ‘due process' and that is a right applicable to all EU citizens.

 

I also think that the "competent authorities" harks back to the Telecoms Package debate about tribunals, administrative authorities, versus courts.

 

All in all, ACTA remains  problematic under EU law, albeit that, in respect of the Internet provisions, it is a clever piece of manipulation.

 

We must remember that it has been negotiated secretly and is an attempt to bypass the legitimate processes of law in a democratic society. The test is for  the European Parliament  to stand up for its previous position which opposed graduated response and supported the fundamental rights and freedoms of European citizens.

 

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I have concentrated on the Internet provisions in the Final ACTA draft, as they apply to the European Union (EU). Here is more analysis looking at a range of aspects of ACTA: 

 

FFII statement and analysis

 

La Quadrature du Net 

ACt on ACTA   Further issues related to ACTA and criminal enforcement under the EU legal framework

 

Michael Geist

 

Sean Flynn,  University of Washington, College of Law 

 

KEI

 

The ACTA Final  text can be downloaded here

 

 

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) Final ACTA  puts  Europe under more pressure for graduated response   http://www.iptegrity.com 6 October 2010