Leaked drafts of the ACTA anti-piracy agreement  confirm that the EU is negotiating on it - in spite of denials by EU officials - and that the talks concern civil enforcement against Internet copyright infringement. Ability to implement them could be dependent on the Telecoms Package limitations amendments  being carried in the European Parliament on 5 May. 

The documents have been made public on Wikileaks. The ACTA - Anti-counterfeiting Trade Agreement - will put in place a new international framework for intellectual property enforcement. It will address copyright, as well as trademarks, and patents. It aims  to put in place new anti-piracy measures for the Internet, as well as measures against alleged counterfeiting of physical products.

The EU has officially denied requests to see any ACTA documentation, claiming that publicising them would be damaging to its negotiating stance. The draft is being created by the US and Japanese governments, but is additionally  marked as "EU Proposals". This  confirms that the EU is actively involved in a negotiation.  

This negotiation is taking place  outside the usual legal structures, and could pre-empt national and EU law-making processes. Moreover, the ability to bring in the online ACTA measures legally, will be dependent on the Telecoms Package and

certain amendments which permit broadband providers to limit users access.

Not much more is revealed concerning the online measures, except that ACTA will be incorporating civil enforcement measures - these are graduated response or 3-strikes - just rejected by the French Parliament- and content blocking and filtering.

A question asked in the EU Parliament by Swedish MEP Jens Holms , got a fairly standard response.  Holms wanted to know if the European Parliament would be offered the chance to scrutinise the ACTA. The official EU structure for such negotiations is that they are handled by something called the Article 133 Committee, which reports to the Commission and the Council, but is outside the formal legislative structures. The Parliament does not automatically have a right to scrutinise the ACTA, before the EU signs it. Mr Holms fears that it could be adopted over the summer, when everyone in Brussels in on holiday. He says he regards the ACTA is de  facto legislation, but without democratic control. 

The leaked documents on Wikileaks  are scans of physical documents, and the clarity of the scan varies. The documents are of varying dates, from May, July and September 2008. It is notable that one dated September 2008, states clearly ‘EU proposals'.  The document headings say "Anti-counterfeiting Trade Agreement", and the draft is only partly complete. The sub-headings ‘Civil Enforcement'is marked to be completed, with chapter headings as follows:

CHAPTER TWO: LEGAL FRAMEWORK FOR ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS

• 24.2 Section 1: Civil Enforcement

• 24.2.1 Article 2.1: Availability of Civil Procedures
• 24.2.2 Article 2.2: Damages
• 28.1 Article 2.3 Other Remedies

47 Page 47

• 47.1 Section 4: Special Requirements Related to Right Management Technology and the Internet

Download the ACTA draft Anti-counterfeiting Trade Agreement from Wikileaks.

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