This article is also available in:
Deutsch: Frequently Asked Questions zu ACTA
French:FAQ sur l’ACTA par Joe McNamee, coordinateur à l’EDRI
Romanian:Întrebări frecvente despre ACTA

1. Does ACTA require countries to impose "three strikes" rules?

Countries that ratify ACTA are required to encourage "cooperation" between private companies to enforce the law. Such cooperation is intended to be extensive, including the disconnection of end-users on the basis of decisions taken by private industry. This is proven by a leaked document published by the European Parliament itself (footnote 6, page 4):

"An example of such a policy is providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat infringers"
http://www.edri.org/files/acta_disconnection.pdf

2. So companies are not obliged to impose repressive measures against consumers?

Companies are threatened with criminal sanctions if they derive "indirect" economic benefit from infringements and/or if they are deemed (possibly as a result of failing to take repressive measures, for example) to have "aided and abetted" one or more infringements. So, they can either take repressive measures, or they are welcome to take these risks, if they prefer.

3. But is ACTA completely in line with existing EU law?

Criminal sanctions for IPR enforcement are not part of EU law - in fact, the only proposal ever made failed. Moreover, the criminal sanctions in ACTA go beyond what was discussed in the failed proposal. For example, the European Parliament demanded exceptions for private copying and "fair use" for activities such as criticism, comment, news reporting, teaching, scholarship or research. There are many other points where the compliance with EU law is dubious - for example, the almost limitless damages that can be imposed under ACTA based on retail price rather the actual damage incurred.

4. But still, is it good to create a "level playing field" of implementation of IPR law?

ACTA seeks to export parts of EU law, in the unexplained assumption that they will have the same impact elsewhere, in completely different legal environments. For example, ACTA requires extensive transmission of personal data of consumers to rights holders and unspecified "voluntary" policing by rights holders. Within the EU, the E-Privacy Directive and the general Data Protection Directive create a context which allows a degree of protection for consumers. Creating dangers without meaningful safeguards is a risk for democracy and the rule of law for citizens of our trading partners where such safeguards either do not exist at all or are more limited. This runs directly counter to the Treaty on European Union, which requires the EU to support democracy and the rule of law in its international relations. We cannot break one law for the sake of imposing another.

5. At least where we are imposing our law on ourselves, there is no danger, right?

Many of the provisions (access to personal data, for example) in ACTA come from the Intellectual Property Enforcement Directive (IPRED). These provisions have caused serious problems in some European countries - such as in the United Kingdom, where the data were used to coerce and, according to one member of the House of Lords "blackmail" consumers. Once these provisions are put into ACTA, the European Union will be under an international legal obligation not to change them. The European Commission's review process for IPRED is scheduled to start after ACTA is scheduled to be adopted by the European Parliament - i.e. the European Union will decide not to make significant changes to IPRED before assessing its impact.

6. At a time of economic crisis, surely it is good to promote economic growth in a trade agreement?

The European Parliament's independent study on ACTA argues that "there is a point at which further strengthening IPRs becomes counterproductive and could in fact hamper innovation". The European Commission refused to undertake an impact assessment, so there is no analysis whatsoever as to whether the very extensive measures proposed in ACTA are, in the study's words, "counter productive".

Similarly, ACTA "encourages" policing of networks by intermediaries (access providers, web hosting providers, payment providers, search engines, advertising networks etc). No analysis has been undertaken to assess the very real danger that this policing activity will be used to keep European companies out of foreign markets. Worse still, as these are extra-legal "voluntary" measures, it would be particularly difficult to obtain a ruling from the World Trade Organisation to fight any such protectionism.

7. But it must be good to establish a benchmark for the world to follow?

The problem is that the closed, secretive nature of the ACTA negotiations, which deliberately avoided agreed and established multilateral forums, has created a benchmark in counterproductive diplomacy. As the European Parliament study says "the major emerging economies, China, Brazil and India appear not to have been formally invited to participate," leading India to champion the cause of Less Developed Countries (LDCs) in the TRIPS council, where it complained about the "exclusion of a vast majority of countries, including developing countries and LDCs".

8. At least, in a globalised world, ACTA will help European online businesses, won't it?

ACTA requires states that are party to it to encourage law enforcement by private companies. Often, these will be in other countries, with different copyright regimes and different degrees of liability. At any given moment, therefore, online companies would be at risk of having their service removed from search engines, payments being blocked by payment service providers, their domain name (like www.edri.org) removed by the company that they paid to register it (the registrar), the company that manages the registry of domain names or advertising network - or being blocked by Internet providers abroad, seeking to protect their businesses from competition.

9. This is all exaggeration - there is no threat to free speech and democracy, is there?

A conservative member of the German parliament unintentionally put multiple copyright-protected images on his website. Large numbers of visits to the page led to a "commercial scale" reproduction of the image. He received an "indirect economic" advantage by not paying for the images and his service provider arguably "aided and abetted" the "infringement" by not taking action against this repeat "offender". Is he or his Internet provider a criminal? According to ACTA, they are. This is a threat to free speech and democracy.

10. Why are national parliaments and the European Parliament voting on ACTA - and hasn't it already been signed, so isn't the process finished?

ACTA partly falls outside the scope of EU law (the so-called acquis communautaire). The part that falls outside the scope of EU law (criminal sanctions) needs to be approved by each Member State. The part that is inside the scope of the EU can be decided and ratified at EU level. The EU can only accept or reject the entire text - although there is nothing to stop it from setting internal guidelines for itself on how it should be implemented in practice.

Signing an international agreement is not like signing a contract - it simply opens the decision-making process within a government.

(Contribution by Joe McNamee - EDRi)