ACTA Internet Provisions Continue to Spark Debate as EC Officials and Others Seek to Debunk ‘Myths’

The European Parliament has the power under the Lisbon Treaty to vote yeah or nay on ACTA but not to amend it. Many members are suspicious of it and even David Martin, of the U.K. and Socialists and Democrats Party, who will write the legislative response to the agreement, said this week that if concerns about digital copyright and other provisions aren’t resolved by the EC or European Court of Justice, ACTA could die in parliament (WID Feb 29 p2).

De Gucht, who has spent a lot of time lately testifying before various parliamentary committees, repeated his position that ACTA aims to extend the reach of Europe’s IP rights enforcement regime beyond its borders so that European innovators can protect their ideas. He said the intense debate over the agreement, including mass protests, showed a “remarkable” level of engagement with politics, but was largely based on misinformation. He said some of the fears about its potential impact on file-sharing among individuals could be based on that fact that most lawmakers knew someone who had done that and might be concerned they would be punished. But, he said, only those who infringe on a commercial scale will be affected. Copyright laws may need to be updated for the digital age, but that has nothing to do with ACTA, he said.

But University of Ottawa Law Professor Michael Geist said ACTA’s “harm greatly exceeds its potential benefits.” Its “corrosive effect on transparency” in international negotiations, the damage to international IP institutions, the exclusion of most of the developing world from the agreement, the potentially dangerous substantive provisions, and its uncertain benefits in fighting counterfeiting “are ample reasons for the public and politicians to reject” ACTA in its current form, he said. Among other things, Geist slammed the treaty for expanding IP law by potentially holding third parties liable for the infringing activities of others, a “significant shift” in international IP law. He also said the fact that many provisions are “may” instead of “shall” could lead to some countries being bullied into changing the flexible language into legal requirements.

Geist also questioned the need for ACTA. The treaty was negotiated by a “coalition of the willing,” but by limiting it predominantly to the developed world, instead of Russia, China and others that are engaged in massive counterfeiting and piracy, ACTA seems destined to fail, he said.

Europe already has a full panoply of measures relating to IP, said Professor Christophe Geiger of the University of Strasbourg Center for International IP Studies. Does it really need another text? he asked. While it’s true that EU law on criminal penalties for infringement isn’t harmonized because of resistance from the European Parliament, most EU countries already have criminal sanctions at the national level that are more binding than ACTA, he said. The most worrying thing about the agreement is that it’s not for Europe and the other signers, it’s for third-party countries that didn’t and won’t endorse it, he said. Geist says ACTA will change the whole planet, and Geiger say it doesn’t mean anything, De Gucht said. Maybe they should sit down and come to a mutual conclusion, he said.

One legislator asked why the Internet chapter couldn’t be excluded from the text. That’s precisely the discussion that should have taken place two years ago when the treaty was being negotiated in secret, Geist said. Many said from the beginning that it didn’t belong, but the U.S. wanted it, he said. While the talk was ostensibly about the safety of counterfeit products, it often felt like a “bait-and-switch” scenario because the focus was on digital issues, he said.

A 2011 study for parliament found that while ACTA represents no significant shift in EU community law, it does raise some concerns about possible lower thresholds for infringement than the Trade-Related Aspects of IP Rights Agreement, said Professor Anselm Kamperman Sanders of Maastricht University, one of the study authors. The bottom line for lawmakers is that unconditional consent would be an inappropriate action given the issues identified, he said.

A separate panel looked at whether ACTA threatens civil liberties. Olivier Vrins, a partner at Altius Lawyers, tried to debunk the “myth” that the agreement will require a “graduated response” to digital infringements, along the lines of that imposed by the French Hadopi law. No provision would permit or encourage blocking or closing down of Internet sites, monitoring, or new obligations on service or hosting providers, he said. “ACTA is not [the Stop Online Piracy Act],” said Rupert Schlegelmilch, director of the EC Trade Directorate General (B). EU law clearly prohibits making ISPs liable for content and ACTA won’t change that, he said.

The workshop made official reporter Martin more knowledgeable but won’t make his job easier, he said Thursday. Speakers didn’t steer him in any particular direction, he said. With ACTA, “the devil is in the lack of detail,” he said. The EC says the concept of “commercial-scale” IP abuses is clear in EU legislation but speakers said it could be considered a vague concept in the agreement, he said. The EC says gradual response or “three-strikes” is out of the document and there are no additional burdens on ISPs yet ACTA does appear to place more responsibility on providers to ensure users aren’t abusing the law, he said. The trade committee is right to take its concerns to the EU high court and to publish an interim report before lawmakers hold a final vote, he said.