05 February 2009

Is the EU Acting Duplicitously Over ACTA?

As I and many others have noted, the current negotiations over the Anti-Counterfeiting Trade Agreement (ACTA) are, on the one hand, shrouded in secrecy for the general public, while on the other, being conducted in close consultation with media industries. This leads to the doubly deplorable situation that an important treaty is being negotiated to favour a particular industry without allowing those most affected by it – the tax-paying public – to even offer comments on it.

One measure of the growing impossibility of sustaining this position was the release by the EU of its “fact sheet” on ACTA, last updated in January. This smooth-talking document attempts to assuage the concerns of the little people, assuring us:

ACTA is about tackling large scale, criminal activity. It is not about limiting civil liberties or harassing consumers.

ACTA will not go further than the current EU regime for enforcement of IPRs – which fully respects fundamental rights and freedoms and civil liberties, such as the protection of personal data: This Community acquis on IPR enforcement is without prejudice to national or Community legal provisions in other areas, in particular in the area of personal data protection, as regulated by the Data Protection Directive and the Directive on privacy and electronic communications.

ACTA is not designed to negatively affect consumers: the EU legislation (2003 Customs Regulation) has a de minimis clause that exempts travellers from checks if the infringing goods are not part of large scale traffic. EU customs, frequently confronted with traffics of drugs, weapons or people, do neither have the time nor the legal basis to look for a couple of pirated songs on an i-Pod music player or laptop computer, and there is no intention to change this.

Of course, in the absence of any details about what the treaty contains, it's hard to tell whether this is just palliative spin or not.

Fortunately, the sunlight of openness is beginning to pierce even the sepulchral gloom of the ACTA negotiation process, and leaks of its current text are beginning to seep out. The news is not good, as Michael Geist explains:

The Border Measures proposals are also still subject to considerable disagreement. Some countries are seeking de minimum rules, the removal of certain clauses, and a specific provision to put to rest fears of iPod searching customs officials by excluding personal baggage that contains goods of a non-commercial nature. The U.S. is pushing for broad provisions that cover import, export, and in-transit shipments.

The proposals call for provisions that would order authorities to suspend the release of infringing goods for at least one year, based only on a prima facie claim by the rights holder. Customs officers would be able to block shipments on their own initiative, supported by information supplied by rights holders. Those same officers would have the power to levy penalties if the goods are infringing. Moreover, the U.S. would apparently like a provision that absolves rights holders of any financial liability for storage or destruction of the infringing goods.


The Criminal Enforcement proposals make it clear that the U.S. would like ACTA to go well beyond cases of commercial counterfeiting. Indeed, their proposal would extend criminal enforcement to both (1) cases of a commercial nature; and (2) cases involving significant willful copyright and trademark infringement even where there is no direct or indirect motivation of financial gain. In other words, peer-to-peer file sharing would arguably be captured by the provision. The treaty would require each country to establish a laundry list of penalties - including imprisonment - sufficient to deter future acts of infringement. Moreover, trafficking in fake packaging for movies or music would become a criminal act as would unauthorized camcording.

Now, it may well be that the EU is fighting tooth and nail against the intrusive border control measure, and the criminalisation of P2P file sharing – both of which would certainly “limit civil liberties” and “harass” consumers. But the best way for the EU to demonstrate its bona fides would be to bring the negotiations out into the open.

It is clear that the scope of this treaty is far reaching: indeed, there is a clear attempt to use it to slip in very powerful clauses that would over-ride national and international legislation. This is simply unacceptable. Moreover, if it turns out that the EU is *not* fighting the above moves, it is nothing short of scandalous that it should be acting in such a duplicitous fashion over ACTA – in which case, those responsible for following this course should be called on to resign.

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