The truth about the Anti-Counterfeiting Trade Agreement (ACTA) is different depending on which side you are on.

At a hearing organised by the Liberal Party Group in the European Parliament in Brussels yesterday Canadian law professor and ACTA expert Michael Geist challenged the position of the European Commission and other negotiating parties to the agreement that ACTA would not lead to substantive law changes in the ACTA countries and also explained what possible long-term effects could result from the heavily debated treaty. Critics in Europe go one further in their rejection of ACTA which does undermine according to them democratic processes in the EU and EU member states.

The “truth about ACTA,” according to Geist, is first and foremost that it is not what it is said to be. “It is essential to recognise that ACTA is not the norm,” Geist said, countering the argument of negotiating parties who have pointed out tirelessly that trade agreements never were negotiated openly.

Geist: Not about Trade, but about IP

“ACTA is not about trade, but about IP,” said Geist, who added the assertion that ACTA is not confined to enforcement of existing laws only. “The claims that this is solely about enforcement, I am sorry, but that is not true.” Examples he gave of necessary changes are higher standards with regard to banning anti-circumvention technology, the protection of “labels” on products and packages, notice and take-down provisions for providers that many countries do not already have or statutory damages so far only in use in the US. “Statutory damages so far were mainly used by the way against non-commercial users,” warned Geist in a challenge to the notion put forth by ACTA negotiators that non-commercial users would be off the hook.

Raising standards in copyright protection is one clear goal of ACTA as Geist reads the leaked draft text of the agreement that is the only version available to the public. One example, according to him, is the re-introduction of anti-circumvention legislation via ACTA that had not received global consensus at the World Intellectual Property Organization (WIPO) when the so-called internet treaties were negotiated in the 1990s. Now the US Digital Millennium Copyright Act would become the standard. Geist said he is afraid of similar effects from ACTA with regard to internet cut-offs in the style of “three-strikes-and-you’re-out.”

While the cut-offs were not compulsory in ACTA they could be referenced by the ACTA partners once in the text and become a standard over time. “You will not get the three strikes today,” he said, but rather in a few years. Again, it was the truth, said Geist, that the three-strikes-measure was only in a footnote and only mentioned as an example for conditions ISP had to accept in order to not be hold liable for copyright infringement of their customers on the net. “But it is the only measure mentioned,” said Geist.

Malcolm Hutty, president of EuroISPA, warned in his panel presentation in Brussels that internet service providers must be protected from liability in order to have the rights of users like free access to information and privacy protected. Measures internet service providers might be asked to implement to qualify for a safe harbour were throttling of bandwidth, the blocking of IP addresses, the filtering or monitoring of traffic and the mentioned cut-offs from access to the communication network. ISPs facing unlimited liability because they did not implement such measures certainly had no option according to Hutty. “If that is the case, this is commercially mandatory, even if it is not legally mandatory,” he said.

EU negotiator Luc Devigne (on left) with Canadian law professor Michael Geist in Brussels Photo credit: Monika Ermert

Devigne: ACTA Fears Based on Myths

Luc Devigne, European Commission lead negotiator for ACTA, reiterated once more the Commission’s mantra that the Commission would not go beyond the acquis communautaire, the harmonised legislation of the Union. To Hutty, Devigne said the Commission would not accept a compulsory three-strikes-rule, or even one that would make internet cut-offs commercially mandatory.

The truth about ACTA told by Geist was rejected completely by Devigne. “I totally disagree with all examples you gave,” the EU official said. ACTA is “only about enforcement, I stand by that,” he underlined, listing all the things the EU would not agree to in the negotiations because there was no harmonised legislation. “There will be no change in ISP liability,” he said, and notice and take-down is only in place in some EU countries. Also there is “no specific legislation for camcording in European legislation so we won’t accept it.” Another example he gave was criminalisation of patent infringement, where again there is no EU law and therefore “we would not accept it.”

Yet there are some problems Devigne had to acknowledge with regard to the EU acquis. Several members of the EU Parliament asked, for example, what the line of negotiation was the Commission was taking with regard to the definition of “commercial,” a term critical in the European debate about criminal sanctions. Devigne said as there was no harmonised position in the EU on this, the Commission did not take a stance in the negotiations. Criminal sanctions also not harmonised in the Union accordingly are negotiated by the EU Presidency representing the European Council.

As soon as the draft ACTA text is published – something the EU is proposing at the next meeting round in New Zealand next week – his life will become easier, Devigne said. That’s because he would not have to deal any longer with myths surrounding ACTA.

Geist doubted that Devigne’s life would become easier with the transparency problem solved. Analyzing the discussion, he said the two sides obviously see two “totally different things” when reading the same text. For instance, saying that a three-strikes model was not there after the leaked draft version of April contained the respective footnote made Devigne’s expectation rather unlikely, Geist said.

ACTA – counterfeiting at all or counterfeiting only?

Members of Parliament – who attended the hearing in considerable numbers – were highly critical of the ACTA negotiation so far. “If three strikes are not compulsory, why are they in the text at all?” asked Liberal Party Member Sophie in’t Veld. Parliament has already said that they does not want internet cut-offs. She also questioned the whole process of secret negotiations and accused the Commission of seeing democratic processes as a burden.

The European Parliament in an earlier resolution not only asked for full access to all ACTA documents, but also to limit ACTA’s scope to anti-counterfeiting, the very aspect where ACTA according to Geist would “ironically” not lead to a much better situation. Limiting ACTA to counterfeiting could in fact mean that the chapter on digital environment and copyright would have to be taken out, something that had made Trade Commissioner Karel De Gucht nervously ask MEPs not to ask for in their resolution. “We stand by this,” said Alexander Alvaro, Liberal Party member and one of the organisers of yesterday’s hearing.

Devigne was asked by several participants in the hearing, including Pirate MEP Christian Engström, what kept the Commission from implementing the Parliament’s resolution. He answered that one had to read the whole resolution which also asked for “continuing the negotiations.” How this EU power struggle is developing is still open, but there are observers who fear that ACTA is undermining EU democratic processes. Not only the resolution by the Parliament seems to have been made a piece of interpretation, but information to national parliaments – not to mention the public – has been non-existent at best, and possibly “deceptive” in more severe cases, according to some ACTA critics.

Geist is heavily concerned with a series of other long-term effects. The shift of venues from the IP-competent fora to ACTA, for example, could slow down or sideline other projects like the WIPO treaty for the visually impaired or the Development Agenda. ACTA with a whole set of bodies of its own might in fact supersede WIPO, where there has been an intensive, and much more open debate on exemptions and limitations to IP rights in recent years, said Geist. He criticised the “country-club approach” of ACTA that would exclude the very countries that were the target of complaints with regard to counterfeiting.

To make ACTA negotiations transparent therefore was not the final goal, said Geist. Substantive debate had to follow and he still thought that a multi-lateral approach should be pursued. If parliaments like the EU Parliament or NGOs like the InternetNZ and other organisers of the counter-conference to ACTA round nine in New Zealand next week will be able to change or even stop ACTA is doubtful, said Geist. What could stop ACTA is disagreement among the ACTA country-club members, and there is still some of that.