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After years of effort from civil society and from the European Parliament, the European Commission finally published a draft text on the Anti-Counterfeiting Trade Agreement.

The most immediately striking point is that the "digital chapter" is still in the text and still contains provisions on ISP liability. This is despite the fact that the European Parliament called on the Commission in 2008 to "ensure that ACTA only concentrates on IPR enforcement measures and not on substantive IPR issues such as the scope of protection, limitations and exceptions, secondary liability or liability of intermediaries" and in March 2010 to limit the negotiations to limit the negotiations "to the existing European IPR enforcement system against counterfeiting".

The Commission also avoided publishing any previous texts, which are essential to the interpretation of international agreements - leaving the real meaning of key parts of the text still hidden. For example, the published text includes the famous proposal requiring parties to limit the liability of online service providers unless they adopt and implement "policies" to monitor their networks but the real meaning of this (such as "three strikes" or equally intrusive measures) is hidden in the unpublished preparatory texts. Other issues, such as the dangerous and undefined "commercial scale" criterion for criminal liability for infringements are all too clear in the text, however.

While the digital chapter contains a wide variety of options, the one point of consistency is that the obligations are severe while the safeguards are limited and legally weak. This is a big problem for citizens in the European Union, but it will be a much greater problem to transpose these obligations into developing countries, which will not be party to enforceable human rights treaties or privacy legislation. It is therefore likely to be a global disaster for citizens' rights - made even worse by the EU's recent endorsement of Internet blocking.

This agreement is meant to become a global standard for trade agreements. If this happens, what will be left of the EU's historical credibility in the fight for free speech and democracy when it starts asking grateful undemocratic governments to place obligations on Internet access providers to "terminate or prevent" infringements? Of course, "those measures, procedures, and remedies shall also be fair and proportionate" but it is almost absurd to think that legal action would be taken if one party's implementation was excessive. It is, after all, an intellectual property agreement and not a human rights instrument.

Overall, before the publication of the ACTA document, the process had problems of transparency, forum shopping, democracy and proportionality. The issue of transparency has been slightly improved, although only slightly. In the absence of earlier drafts and the positions of the different negotiating "partners" this can hardly be considered to be full transparency. The not-just-anti-counterfeiting, not-really-trade, not-yet-agreement has a long way to go to before it could be considered better than useless.

ACTA - Released text (21.04.2010)
http://trade.ec.europa.eu/doclib/press/index.cfm?id=552

European Parliament resolution on the impact of counterfeiting on international trade (18.12.2008)
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&...

European Parliament resolution on the transparency and state of play of the ACTA negotiations (10.03.2010)
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7...

(contribution by Joe McNamee - EDRi)