The latst ACTA leak reveals provisions which are reminiscent of the Telecoms Package copyright amendments. But it also reveals that it presses much harder on the liability of the ISPs. Could ACTA make them use deep packet inspection?

The latest document to leak from the Anti-counterfeiting trade agreement ( ACTA ) discussions reveals active negotation over ISP liability.

Option 3, Paragraphs 3ter and 3quater on pages 30-31 reflect concepts addressed by certain of the Telecoms Package amendments. 3 quater reflects the "co-operation" amendment [now Article 32a of the Universal

Services Directive (Harbour report).], that telecoms regulators should promote the co-operation between network operators and the sectors interested in the promotion of lawful content] . In ACTA, this provision is being re-worded as "mutually supportive relationships between online service providers and rights holders"

And it is being extended, because these 'mutually supportive relationships' are to "deal effectively with patent, industrial design, trademark" as well as copyright infringement.... And it is being specified that these could be non-legislative, self-regulatory or voluntary arrangements: " including encouragement of establishing guidelines for the actions which should be taken"

From an EU perspective, it is the extension of the provision to other forms of intellectual propoerty, and the implementation of the provision, that is critical.

3 ter reflects attempts in the Telecoms Package to weaken EU privacy law, which did not succeed, and the recent comments by the European Data Protection Supervisor are relevant here.

Other proposed provisions appear to increase the liabilty of ISPs. Option 3, points i and ii, on p30 could have the effect of making ISPs liable to police their networks because it seems to say that they could be sued if it is a/ technically possible to take measures preventing infringement, and b/ they have grounds to know that an infringement is occurring.

This proposal is very concerning. Its impact on the "mere conduit" provision, would need to be closely examined.

I note that the ACTA negotiators are 'dealing' on the mere conduit provision, even though it is outside the scope of copyright law. ( See also (Option 2 ( a ) i on page 26).

Apart from the obvious concerns regarding the substance and implications, questions should be asked whether the European Commission has a mandate to renegotiate key principles of communications law, such as mere conduit. Note 23 on page 26 is relevant here.

Michael Geist has more extensive analysis of this latest ACTA leak, including the other ACTA chapters and non-EU matters.

The actual leaked document is available online here .

For the full story of the Telecoms Package, see my book The Copyright Enforcement Enigma: Internet politics and the Telecoms Package

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: haunted by the the Telecoms Package http://www.iptegrity.com March 2010

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