EU Commission on ACTA – ‘There is no Treaty’

It appears as though confusion and mixed signals continue to plague the EU commission in more than one committee.

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

Movement in North America on ACTA (Anti-Counterfeiting Trade Agreement) may have slowed down today, but the issue is definitely heating up in Europe. Fresh on the heals of the IMCA experiencing difficulty in understanding ACTA, the INTA (European Parliament’s Trade committee) committee had some more dramatic commentary in the European parliament.

IPTegrity is reporting that the European Commission is currently trying to avoid serious questions about transparency regarding the elusive treaty. When asked about whether European Parliamentarians will be able to have access to the text of ACTA, there was quite a remarkable answer: “we are being asked about things which do not exist yet. There is no Treaty. We cannot give what does not exist”

It’s quite a remarkable statement so late in the debate. There have already been several leaks over the years throughout the ACTA process. Not only have their been repeated international calls to have ACTA transparent, but legal procedures designed to keep world governments transparent though things like the Freedom of Information Act (US) and Access to Information Act (Canada) have all been met with tight-lipped responses. At one point, the US said that ACTA was a national security issue and must be kept a state secret – although one might note that ACTA is currently one of the worst kept secrets in the world of copyright these days.

One might observe that had such a comment been made when the earliest leaks were made, such a comment might be forgivable, but now, denying the existence of ACTA is pretty much a few years too late.

The posting also contains the following:

Schlyter also raised a very important point of order. He claims to have received information from the Commissioner, Karel de Grucht, which contradicts certain points made by the Commission representative today. He asked for the Commissioner to be present at future briefings.

The Commission said that ACTA will not alter the framework of rights available. It would not alter substantive IP law, or go outside the acquis communitaire and “will not address fundamental rights”. He also said “ACTA is not about imposing 3-strikes” (but I have a note on my pad that he was looking down as he said it). Later he also said ” a generalisation of 3-strikes rules will certainly not be in the EU position” – whatever that means.

Again, we must refer to our previous report on ACTA and quote the following from ACTA:

3. Each Party recognize that some persons use the services of third parties, including online
service providers, for engaging in copyright or related rights infringement. Each Party also
recognizes that legal uncertainty with respect to application of intellectual property rights,
limitations, exceptions, and defenses in the digital environment may present barriers to the
economic growth of, and opportunities in, electronic commerce. Accordingly, in order to
facilitate the continued development of an industry engaged in providing information
services online while also ensuring that measures take adequate and effective action against
copyright or related rights infringement are available and reasonable, each Party shall:


(b) condition the applicantion of the provisions of subparagraph (a) on meeting
the following requirements:
(I) an online service provider adopting and reasonably implementing a policy ^6 to address the unauthorized storage or transmission of materials protected by copyright or related rights

^6 An example of such a policy is providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider’s system or network of repeat infringers.

This draft text, as a matter of fact, makes it perfectly clear that ACTA is, indeed, about pressuring countries to enforce a policy where accused copyright infringers would be disconnected from the internet or repeat infringers. A three strikes policy as it is understood today is a policy where if a person is accused of copyright infringement three times, they would be disconnected from the internet. There’s no system of countering the accusations and there is no court oversight – although France was forced to put in place weak court oversight on the third strike.

It is unnerving to some to see officials keep up such a smoke and mirrors policy. We’ve already seen some officials barely even grasp the basic facts about ACTA and yet they are the same people who are dictating the policy. Questions could easily be raised over who is really pulling the string, though as of October of 2009, that was pretty obvious (Re: BSA, IIPA, members of the MPAA, CCIA, etc.)

Drew Wilson on Twitter: @icecube85 and Google+.

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