Leaked ACTA Text Shows Possible Contradictions With National Laws

“No changes in domestic” law promised the partners currently negotiating the Anti-Counterfeiting Trade Agreement. A leaked 56-page recent consolidated version of the much-discussed agreement shows that this might not be completely true. The draft version with a lot of bracketed text shows that some countries are more open about the potential need to change their domestic laws than others.

French civil rights organisation La Quadrature du Net published the leaked alleged “consolidated text” version dated 18 January last week only hours after another EU stakeholder dialogue meeting. During that stakeholder meeting Directorate General Trade official Luc Devigne rejected the notion that provisions for cutting off internet access for repeat copyright infringers were part of the negotiations. But this does not appear to be a true statement given the draft ACTA provisions about an internet service provider policy for “terminating subscriptions and accounts” proposed by the United States and “procedures governing the removal or disabling of access to information,” proposed by the European Union. Section on ISPs here.

Changes in Domestic Laws?

While the “three-strikes-and-you’re-out” cut-offs have been made part of the EU acquis, the EU negotiators seem to go one step farther when they place conditions on the waiver to monitor ISP traffic. The EU proposal reads: “When providers are acting in accordance with this paragraph 3” [including quick interventions against infringements] “the Parties shall not impose a general monitoring requirement.”

Liability for providers according to the draft ACTA text shall be conditioned in several ways, and this is supposed to bring changes in the laws of several ACTA partners. European Digital Rights expert Joe McNamee sarcastically concluded that the publicly presented version must be a counterfeit version that was only similar to the original, but not actually the true stuff.

The negotiators from Japan are most outspoken in the leaked text about contradictory language and possible changes to their domestic law. Some of the ACTA proposals with regard to ISP liability were not consistent with the ISP Act of Japan, the negotiators write in their comments included in the draft consolidated text. Either ACTA or domestic law has to be changed.

The same dilemma is reported by Japan with regard to a ban on circumvention of access control mechanisms. Japan was “examining how to fix the difference between its legislation and present ACTA draft, with due regard to maintaining a balance between the rights of authors and the larger public interest, e.g. education, research.”

Japanese negotiators write that they wanted information from the proponents about the “amount of harm by circumvention of access control” and “how effective the legal remedy against the circumvention of access control was.” On the other hand, the US negotiators also might see inconsistencies between ACTA and their domestic law because some parties are opposed to have the “fair use” exemption in the anti-circumvention measure provisions.

More Broken Promises

The provisions on anti-circumvention of technical protection measures steps over another line, warn the negotiators from New Zealand in the draft consolidated version: “The paragraphs refer to “adequate legal protection” as well as remedies, which is inconsistent the objective of ACTA to establish standards for the enforcement of intellectual property.”

The EU and the US are much less open about where they see needs to adapt their domestic legislation, yet the EU negotiators move onto dangerous territory with proposals on criminal sanctions, as these are not harmonised in the EU. The EU negotiators propose to drive criminal sanctions against IP infringements one step further and criminalise “inciting, aiding and abetting.”

Given the contradictions between the text and public comments by the negotiators attempts to calm concerns of civil rights groups may be doomed. When negotiators next speak of internet cut-offs as off-limits or searches of i-Pods at the borders as myths and rumours they might be served in quotes from their negotiating texts (assuming the leaked texts are real). With regard to searches at the border, for example, three of four proposals say personal items “may” be excluded from being seized.

Canadian law professor Michael Geist, who published several analyses on the leaked draft, pointed to an issue many negotiators do not appear to fancy – punishing movie-camcording. Geist underlined another topic to be given a good look: The setup of an ACTA secretariat and ACTA governing member state body might in fact become a competitor or successor to the World Intellectual Property Organisation (WIPO). Questions about who will be eligible to join and under which procedure like most other provisions are still under heavy discussion.

That many points are still heavily debated caused one observer to question if ACTA ever will make it. André Rebentisch, for years an observer of Brussels politics for the Foundation for a Free Information Infrastructure, thinks that ACTA “was going nowhere.” Support from the rightsholders is lacking and “no one is interested in the technical mess and the broadened agenda,” he said.

Another hearing by the European Parliament in early April might show the degree to which ACTA negotiators may have succeeded in making another enemy. The Parliament already made clear that they wanted to be fully informed about the proceedings and pointed to the failure of another international agreement negotiated behind closed doors, the SWIFT agreement on banking data transfers, as a case where this demand was not valued.

In the US, too, questions have been raised about the constitutionality of administrative negotiations of such an agreement, by Harvard professors Lawrence Lessig and Jack Goldsmith. In their Washington Post opinion piece they warn that “joining ACTA by sole executive agreement would far exceed” precedents. The “president had no independent constitutional authority over intellectual property or communications policy,” they write and “binding the United States to international obligations of this sort without congressional approval would raise serious constitutional questions.”

Yet a lot of work has gone into the negotiations, problems of piracy and counterfeiting continue, and it is doubtful if negotiators will let ACTA simply die.