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Deutsch: Durchgesickerter ACTA-Text bestätigt Verdacht

The text of the digital chapter of the Anti-Counterfeiting Trade Agreement was published on 21 February 2010, following news articles from IDG News Service issued a few days before.

The text of the draft digital chapter confirms that there are several problems with the draft agreement and many of the assurances given on the topic were somewhat "economical with the truth".

These "economies" were on display again during a discussion between the Commission Head of Unit responsible for the dossier, Luc Devigne and the International Trade Committee of the Parliament. Mr Devigne explained that:
- there is no ACTA text, so there is nothing that the Commission could share with the Parliament
- ACTA is about enforcement and not about changing substantive law

Mr Devigne was also quite economical with answers. He failed to answer questions on:
- the failure to implement the relevant provisions of the Lisbon Treaty with regard to transparency - the fact that US lobbyists had access to the ACTA documents but not the European Parliament
- if ACTA would require ordinary citizens to be excluded from the scope of certain border measures or would simply allow for this to be the case
- if ACTA would lead to criminal sanctions, including prison, for people that recorded films in cinemas
- if ACTA would criminalise an individual who, for example, created an open source programme to open all documents on all formats, thereby (without commercial interest) circumventing technical protection measures.

He also repeated the meaningless statement that "ACTA is not meant to undermine civil liberties", which simply means that this was not the original intent of the negotiations and does not, quiet obviously, exclude this possibility.

Unsurprisingly, the unclear, ambiguous and "economical" answers lead to an angry reaction from Parliamentarians. The little information that MEP Carl Schlyter (Greens, Sweden) was able to glean from Mr Devigne's answers was, he said, contrary to information that had previously been provided by Commissioner De Gucht. Consequently, he requested that the Commissioner attend future discussions instead of Devigne.

EDRi has prepared a public FAQ on ACTA in order to better explain why the agreement is endangering human rights in Information Society.

EDRi explains that the treaty is not just about counterfeiting, because it also covers a far greater range of issues, including mandated penalties for non-commercial copyright infringement, worldwide Internet regulation and world trade in generic medicines.

The leaked document talks mostly about copyright infringement. Although the document is vague on whether non-commercial infringements are included, provisions from the Border Measures section previously made public indicate that the definition of counterfeiting will change current international norms and expand the scope beyond catching organised criminal networks smuggling goods that this agreement is purported to target.

The leaked ACTA chapter includes a "three-strikes" Internet disconnection approach for alleged repeating copyright infringers. The document makes clear that the US negotiators intend that ISPs would be required to adopt threes strikes Internet disconnection policies in order to get the benefit of "safe harbours" or limitations on lSPs' liability for copyright infringement.

The proposal would require countries to adopt criminal measures, which are outside the body of the harmonised EU legislation. When read alongside the criminal measures provisions made public earlier in the ACTA negotiations, many concerns arise about the increased criminalisation of activities online. Without robust proportionality principles and with insufficient consideration of civil liberties and human rights protections, ACTA is a threat to ordinary behaviour on the Internet. The ineffective strategy of deterrence without balance undermines the legitimacy of the law.

After the new chapter of ACTA has leaked, an Opinion from the European Data Protection Supervisor (EDPS) explained that the current three strikes proposals may be incompatible with the current data protection requirements.

The EDPS complained that he was not involved by the European Commission in the debates on this treaty and declared: "Whereas intellectual property is important to society and must be protected, it should not be placed above individuals' fundamental rights to privacy and data protection. A right balance between protection of intellectual property rights and the right to privacy and data protection should be ensured. It is also particularly crucial that data protection requirements are taken into account from the very beginning of the negotiations so as not later on having to find alternative privacy compliant solutions."

The next round of negotiations will take place in New Zealand on 12-16 April 2010. Parties agreed tentatively to a 5 day round, covering a detailed discussion on Internet, civil, customs and penal measures.

Leaked ACTA draft reveals plans for internet clampdown (19.02.2010)
http://computerworld.co.nz/news.nsf/news/leaked-acta-draft-treaty-reve... ans-for-internet-clampdown

Leaked ACTA chapter on Internet
http://sites.google.com/site/actadigitalchapter/acta_digital_chapter.p...

EDRi FAQ on ACTA (22.02.2010)
http://www.edri.org/files/acta_FAQ_100222.pdf

Opinion of the European Data Protection Supervisor on the current negotiations by the European Union of an Anti-Counterfeiting Trade Agreement (ACTA) (22.02.2010)
http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/...

Anti-Counterfeiting Trade Agreement: EDPS warns about its potential incompatibility with EU data protection regime (22.02.2010)
http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/...

(contribution by Joe McNamee - EDRi)