Negotiations are set to continue on the Anti-counterfeiting Trade Agreement (ACTA) before Christmas. A date has been set for a meeting in Paris on the 15-16 December, and a preparatory meeting was held by the European Union's secretive Article 133 Committee on 21 November.

Following that meeting a public ‘fact sheet’ was issued by DG Trade on 25 November, in which, among other things, it is suggested that the negotiations will be looking at the issue of ISP liability for content and copyright infringement: “Internet distribution and information technology - e.g. mechanisms available in EU E-commerce Directive of 2000, such as a definition of the responsibility of

internet service providers regarding IP infringing content”.

ACTA is important because it is about an international framework for the enforcement of IP law. Although the fact sheet states that ACTA will not go further than the current EU framework, which means the IP Enforcement directive of 2004, and the e-commerce directive, it is evident that items on the agenda are likely to go further. Notably the issue of ISP liability, and also, it’s understood that 3-strikes measures are being discussed.

The DG Trade fact sheet helpfully also says that ACTA is only dealing with copyright enforcement, and is not attempting to introduce new elements of copyright or IP law, as such. It also says that ACTA only intends to deal with large scale, criminal infringements, and it is not about restricting civil liberties. And that the European Parliament will be fully informed – which is not the same thing as the Parliament being able to vote on it.

However, I do wonder if the fact sheet has the Mandelson touch, and was maybe prepared before the change of Trade Commissioners. If not, then I’d say it has the ‘Yes, Minister’ touch: “It is alleged that the negotiations are undertaken under a veil of secrecy. This is not correct. For reasons of efficiency, it is only natural that intergovernmental negotiations dealing with issues that have an economic impact, do not take place in public and that negotiators are bound by a certain level of discretion. However, there has never been any intention to hide the fact that negotiations took place, or to conceal the ultimate objectives of the negotiations, the positions taken in the negotiations or even details on when and where these negotiations are taking place.”

What exactly does this mean? Either they can’t talk about it, and must be discreet, or they can make public the positions taken in the negotiations. If ‘there is no intention to hide... the positions taken in the negotiations’, then is there any reason for the refusal to make public the ACTA documents which exist in the Council register, but are not public? Two requests have been made for the publication of these documents. 

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