The Closing of the Net  "original and valuable"  Times Higher Education

Questions on ACTA in the European Parliament today revealed a distinctly shady Commission, which is giving out conflicting information publicly and privately.  The key issue for MEPs is why the Commission is  being  so economical with the truth?


The European Parliament's Trade committee (INTA) today had the opportunity to question a representative of the European Commission on ACTA - the Anti-counterfeiting Trade Agreement.


There were several calls for

transparency on the ACTA negotiations, from a cross-party group of MEPS.


Catherine Bearder (ALDE, UK - and incidentally, represents my area in the south of England) said that there is a consolidated text in existence with a deadline for revisions of 12 March. She asked when will we see this text?  


The answer was "we are being asked about things which do not exist yet. There is no Treaty. We cannot give what does not exist"


Sayed Kamall (ECR, UK) asked about the Impact Assessment. Technically, there should be two - one on the Commission position, and one on the likely outcome. He  got no answer.


The impact assessment is a legal requirement under the EU legislative process. The Commission should not be allowed to use the ‘trade agreement' framework to avoid it (or to skew it).


Daniel Caspary, (EPP, Germany) asked what is the European industrial interest in ACTA. The answer was to say the least, uninformed. The Commission representative  omitted the salient point that the companies who are pushing for ACTA are the likes of Walt Disney and the Hollywood film industry, which is many times the size of the European film industry.


Carl Schlyter, (Greens, Sweden) asked some technical questions regarding the criminal liabilty of an open source software developer, which the Commission simply did not even bother to address.


Schlyter  also raised a very important point of order. He claims to have received information from the Commissioner, Karel de Grucht,  which contradicts certain points made by the Commission representative today. He asked for the Commissioner to be present at future briefings.


The Commission said that ACTA will not alter the framework of rights available. It would not alter substantive IP law, or go outside the acquis communitaire  and  " will not address fundamental rights".  He also said "ACTA is not about imposing 3-strikes" (but I have a note on my pad that he was looking down as he said it). Later he also said " a generalisation of 3-strikes rules will certainly not be in the EU position"  - whatever that means.


This needs some unpacking. I think that most experts understand that ACTA will not alter the ‘rights' available and that ACTA is about enforcement.


Enforcement is also part of the acquis communitaire  - the IPR Enforcement directive.

It is also now widely understood that the provisions in the ACTA,    imposing liability on Internet Service Providers for copyright enforcement,  will effectively impose 3-strikes by a back-door.  The Commission should understand this concept very well, after the Telecoms Package debate. Thus, it begs the question why the Commission maintains this clearly incorrect interpretation.

And, therefore,  the real question for the Parliament,  is which part of the acquis communitaire is being addressed in ACTA? 

New methods of enforcement being lobbied for by the rights-holder industries fall outside the copyright legal framework, and fall into the communications legal framework. This may be why the Commission is  being so shifty.


ACTA does appear to  exist in draft. Read the leaked ACTA chapter   (actually, it's only a section of it, but it does contain the onerous ISP liability  provisions). 


This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. 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: Why  will the EU Commission not answer? 23 February 2010









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