[A2k] IPTEGRITY: ACTA & the Telecoms Package: a mutually supportive relationship?

Malini Aisola malini.aisola at keionline.org
Mon Aug 30 10:42:33 PDT 2010


ACTA & the Telecoms Package: a mutually supportive relationship?  	
By Monica Horten
Aug 29, 2010 at 10:50 PM

The ghostly spectre of the Telecoms Package that has stood behind ACTA,
is becoming more clearly discernible. And a devious PR move by  the ACTA
negotiators is bad news for Internet users.

Following the Washington meeting of the ACTA (Anti-counterfeiting Trade
Agreement)  negotiators in August, it is now emerging that the
requirement for secondary liability on ISPs could be dropped.
Apparently, this is at the request of the US.

But is this just a  cynical public relations manoevre on the part of the
ACTA negotiators? Analysis of the latest ACTA leak indicates that
removal of the offending paragraph will not change a great deal in terms
of the substance of ACTA  (see below). And a paragraph that is
remarkably similar to one in the Telecoms Package remains in.

Reports from the US have suggested that the proposal is to  ‘remove
controversial language [that would] impose secondary liability on
Internet firms'.  However, we don't know exactly which provisions are
implied, as the source of the information has not been so specific.

As is explained  in a blog posting on the American University Washington
College of Law website, the obvious paragraphs that could go are 3b and
3c of  Article 2.18. These are the two paragraphs which set out clearly
a liability for ISPs to remove or prevent access to content which is
deemed to infringe copyright and other forms of intellectual property.

But questions would still remain concerning two further paragraphs :  3
ter and 3 quarter.

3 ter is about disclosure of users' personal data to rights-holders - a
necessary precursor for 3-strikes or and similar enforcement measures
targetting Internet users and could conravene the E-privacy directive.

3 quarter is a blatant re-write of Article 33.3 in the Universal
Services Directive. This is a key enabler of 3-strikes and similar
measures.  ‘Promote the development of mutually supportive relationships
between online service providers  and right holders‘  is a euphemism for
ISPs and rights-holders working together on enforcement measures, where
3-strikes will be top of the list (think of Eircomm).

‘Establishing guidelines for actions'  could mean putting in place a
regulatory structure for a system of warnings and sanctions. Equally, it
could relate to blocking measures, or,  to some form of Notice and
Takedown procedure.  

The power of the provision lies in its vagueness and possible
applicability to a range of different enforcement measures.

For the EU, the provision would have serious consequences. It goes a
long way beyond the Telecoms Package, which, in this context, only
applies to copyright. The ACTA provision brings in patents, industrial
design and trademarks, and questions must asked as to whether these
kinds of measures could therefore be applied to IP infringements other
than copyright. Such interpretation  would be outside the scope of EU
law as it stands today.

It raises the possibility of widescale sanctioning of users and
blocking measures for a range of purposes, and would appear to encompass
the demands of the large luxury goods manufacturers who have pursuing
eBay in the courts.

Once again, it gives the lie to the continued assertions of DG Trade,
that ACTA will not mean 3-strikes or similar enforcement measures. 

Moreover, the subtle use of ‘shall' would reverse an amendment made by
the Council of Ministers, which makes the EU provision optional. Some EU
Member States, such as Sweden and Germany, have taken decisions not to
go the 3-strikes route.

        ACTA:  Anti-counterfeiting Trade Agreement
        Article 2.18
        3 quarter:
        "Each Party shall  endeavor to promote the development of
        mutually supportive relationships between online service
        providers and right holders to deal effectively with patent,
        industrial design, trademark and copyright or relater [sic]
        rights infringement which takes place by means of the Internet,
        including the encouragement of establishing guidelines for the
        actions which should be taken."

This article is licensed under a Creative Commons Attribution
Non-commercial-Share Alike 2.5 UK:England and Wales License.
http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for
non-commercial purposes only, and the author's name should be
attributed. The correct attribution for this article is: Monica Horten
(2010) ACTA & the Telecoms Package: a mutually supportive relationship?
http://www.iptegrity.com 28 Augusut 2010 

Malini Aisola
Knowledge Ecology International
1621 Connecticut Avenue NW, Suite 500, Washington DC 20009
malini.aisola at keionline.org|Tel: +1.202.332.2670|Fax: +1.202.332.2673

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