The chapter on copyright protection in the digital environment under negotiation in the controversial Anti-Counterfeiting Trade Agreement (ACTA) is still in an embryonic state, said negotiators coming back from the recent ACTA negotiations in Guadalajara, Mexico.

Negotiators for the first time had substantive discussions about the agreement’s internet chapter, they said, and there is still much work ahead. Meanwhile, the European Parliament is preparing to assume its newly increased role in ACTA negotiations with several requests to the EU Commission underway. Intellectual Property Watch spoke with negotiators about internet cut-off provisions and criminal law sanctions against file-sharers.

An obligation for a “three-strikes-and-you’re out” enforcement regime was not apparent anywhere in the confidential ACTA latest draft text, said Matthias Schaeli of the Swiss Federal Institute of Intellectual Property (IPI). An obligation would go beyond national laws of many negotiating countries, he said. Extreme proposals to enforce copyright protection in the digital environment, while possible at this stage, according to Schaeli, would “probably not find the support of all parties for inclusion in the final text.”

While the Swiss IP expert acknowledged that some parties provide for a three-strikes provision at their national level, he doubted whether all negotiating countries would be ready to reconcile such a mechanism with their constitutional right to information. “Is this practical, also with regard to funding, given the number of cases we see?” asked Schaeli. There is not a lot of experience with implementation so far. Three-strikes legislation has been passed in France, New Zealand, South Korea and Taiwan.

Pedro Velasco-Martins, a negotiator from the European Commission trade directorate general, once more underlined the firm commitment of EU negotiators to stick to the EU acquis, the Union’s harmonising legislation. Should the EU negotiators misrepresent this, they would have to face consequences at some point in time, Velasco-Martins told Intellectual Property Watch.

A alleged leaked confidential two-page report from Velasco-Martins was written about this week by University of Ottawa law professor Michael Geist, here. It said progress was made on items like exemptions for personal luggage, which according to the report was “a sensitive issue in the public opinion.” The report indicates the next negotiating round will be held in Wellington, New Zealand on 12-16 April.

Yet Velasco-Martins did not reject the possibility that three-strikes provisions were enabled by ACTA. In fact, the cut-offs are part of the EU aquis, something that was also underlined by an answer given by then-Commissioner Benita Ferrero-Waldner in the first week of February to a request by Pirate Party Parliament Member Christian Engstroem.

“ACTA would be in line with the body of EU legislation, which fully respects fundamental rights and freedoms and civil liberties, such as the protection of personal data,” Ferrero-Waldner said. Furthermore, she said, “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.”

However, EU telecommunications regulation is flexible with regard to three-strikes concepts, said Velasco-Martins, given that strict procedures were upheld. “A lot of text has been integrated into the telecom package about due process,” he said. Different countries passed variations on the cut-off policy, and at the same time there are several member states against this kind of sanction. ACTA must mirror both options, according to Martins. An upward harmonisation effect through ACTA – meaning that ACTA pushes EU member states to have such legislation – was a mere theoretical possibility. He did not think it would be in line with the EU acquis.

US, EU Differ in Bilateral Pacts

Interestingly, in the EU-South Korean Free Trade Agreement discussed last week by the EU Parliament, the cut-off of internet access does not play a role, while in the US-Korean Free Trade Agreement the possibility to cut of copyright-violators’ access is envisaged as one condition for greater limitation of ISP liability. In what way this FTA has an effect to push three-strikes provisions – possibly as a voluntary measure by ISPs in the US – has not been discussed much so far.

Despite the declared commitment to the EU acquis, there is one issue where the negotiators do seem inclined to stretch their mandate: criminal law sanctions were rejected during the legislative process for the IP Enforcement Directive (IPRED) in 2004. Yet criminal law sanctions are part of ACTA. An IPRED2 that will harmonise nations’ criminal sanctions against copyright infringement is still underway. So while harmonisation is still lacking with regard to criminal sanctions against IP rights infringements, EU negotiators came up with a “special solution.” The European Commission is pointing to minimum standards for criminal sanctions in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

But having said yes to TRIPS does not settle questions around the range of answers given in EU member states with regard to who should be the target of criminal sanctions. In fact, the controversy about the meaning of “copyright violation on a commercial scale” as the threshold for criminal sanctions was one of the reasons for failure to include criminal sanctions in the EU IP enforcement directive in the first place.

EU negotiators have avoided a clear definition of “commercial scale” in the EU-Korea FTA, which reads: “Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting and copyright and related rights piracy on a commercial scale.“ Their US partners made it more clear what commercial scale could mean in the US-Korea FTA, which reads: “Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale. Wilful copyright or related rights piracy on a commercial scale includes: (a) significant wilful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and (b) wilful infringements for purposes of commercial advantage or private financial gain.

In what way the TRIPS referral will be accepted by the EU Parliament as part of the acquis therefore remains to be seen. Besides Engstroem’s request there is another one by Liberal Democrat Alexander Alvaro pending before the Commission and the Parliament is preparing a hearing on ACTA.

Alvaro asked why issues other than counterfeiting were addressed at all, and why if substantive changes of IP law were intended this was not discussed at the World Intellectual Property Organization, and what the benefit of an agreement would be that would – according to statements from US officials – bring no changed responsibilities to the negotiating partners. According to the new Lisbon Treaty, Parliament has to agree to ACTA and it has just demonstrated its power to say no to a secretly negotiated agreement last week, when it rejected the transfers of banking data to US authorities.

William New contributed to this report.