EDRI Publishes FAQ on ACTA

With all the confusion seemingly going through the European political scene regarding ACTA, it’s nice to know that there are those out there that are willing to try and eliminate some of that confusion.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

Already, the IMCO seems to have been having problems deciphering exactly what ACTA (Anti-Counterfeiting Trade Agreement) is. Meanwhile, another committee in the EU commission, the INTA, contained suggestions that ACTA didn’t even exist. It would seem that the only thing more confusing then having so many acronyms in this article is the agreement that everyone is talking about in the first place. That’s where the European Digital Rights (EDRI) appears to be jumping in to help fill a gap where there might otherwise be confusion.

The European Digital Rights (EDRI) have posted an FAQ on ACTA. The FAQ (PDF) targets specifically the internet chapter, the chapter that has caused the most controversy over the years since ACTA was first leaked online. The FAQ does a very nice job at targeting some of the known arguments put forth by supporters that really have wound up being untrue. Here’s a few examples:

1. Is the Anti-Counterfeiting Trade Agreement (ACTA) only about counterfeiting?

No. Counterfeiting involves the production of fake goods which fraudulently profit from trademark owners and harm consumers’ confidence. ACTA does contain provisions strengthening enforcement against counterfeit goods, but 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.

4. Does the ACTA Digital Enforcement chapter include a “three-strikes” Internet disconnection approach for alleged repeat copyright infringers?

Yes. Footnote 6 indicates that US negotiators intend that ISPs would be required to adopt Three Strikes Internet disconnection policies in order to get the benefit of “safe harbours” or limitations on lSPs’ liability for copyright infringement. This chapter requires countries that sign on to ACTA to have, or introduce, secondary liability for ISPs for copyright infringement. In order to avoid or limit their liability, ISPs will want to take advantage of the safe harbours and will therefore feel obliged to adopt Three Strikes disconnection policies. Thus, although ACTA would not mandate signatory countries to pass Three Strikes legislation, Three Strikes would become the new global norm by creating powerful incentives for ISPs to adopt such measures via self regulation. This would avoid the democratic barriers faced by a Three Strikes systems based on the rule of law.

8. Didn’t the European Commission promise that there would be no three strikes?

In response to Parliamentary question E-6094/2009 from Christian Engström MEP, the European Commission responded that:

“ACTA should not contain measures restricting end-users’ access to the Internet that would not be appropriate, proportionate and necessary within a democratic society and without a prior, fair and impartial procedure”.

Even without the admission in footnote 6 that exactly the contrary is proposed in ACTA, it is clear that placing liability on Internet access providers is likely to lead to such restrictions. Any significant level of ISP liability included in the final draft will be in obvious contradiction to the spirit, if not the letter, of the recently adopted EU telecoms package.

In response to the same question, the Commission also stated that “it is the Commission’s view that ACTA is about tackling large scale illegal activity”. There is no attempt (nor indeed is it clear what attempt is possible) for ISP liability to be restricted to such activities. Unless it is the Commission’s intention to reject any significant text on ISP liability, the Commission’s response is misleading.

For those who are less familiar with ACTA and want to know more about this agreement, particularly if you are a European citizen, this FAQ is an excellent way to get informed.

Drew Wilson on Twitter: @icecube85 and Google+.

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