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

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

Flattr this 

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:  haunted by the the Telecoms Package March 2010









The Copyright Enforcement Enigma tells the story of the 2009 Telecoms Package and how the copyright industries tried to hijack it.

'accurate and absorbing account of the story of the Telecoms Package' -Journal of International Commercial Law and Technology

'...a must read for those interested in knowing in depth about copyright enforcement and Internet.' -Journal of Intellectual Property Rights.  

Read more  

Ask your library to get it!

Order direct from the publisher.

Go to   Amazon

Copyright Enforcement Enigma launch, March 2012

European Parliament launch for Copyright Enforcement Enigma

Don't miss Iptegrity!  RSS/ Bookmark is the website of Dr Monica Horten, European expert on Internet policy and Visiting Fellow at the London School of Economics & Political Science. She is an independent expert on the Council of Europe Committee on Cross-border flow of Internet traffic and Internet freedom (MSI-INT). She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy. Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity is made available free of charge for  non-commercial use, Please link-back & attribute Monica Horten. Thank you for respecting this.

Contact  me to use  iptegrity content for commercial purposes

The politics of copyright

A Copyright Masquerade - How corporate lobbying threatens online freedoms

'timely and provocative' Entertainment Law Review

Paperback and Kindle and Epub formats.

Available from all good online bookstores or get it from the publisher Zed Books  direct:

Amazon UK

Amazon USA