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The European Commission has now admitted in writing  what the ACTA negotiations will mean for the  Internet. In Europe, it will mean a 'harmonised' enforcement

 

In a written reply to questions from the MEP Alexander Alvaro, the European Commission informs us of its intentions with ACTA. It states that 'there are no proposals for a compulsory 3-strikes system'. However - and here's the real issue - ACTA will impose obligations for copyright enforcement  with respect to the Internet. If it is not 3-strikes, then what is it?

The commission  says that because Internet flows across borders, a minimum

set of rules for copyright enforcement online is needed.

It says there are no plans for a compulsory 3-strikes, but immediately follows it with: 

The three-strike system is in place or is envisaged in certain Member

States but it is not part of the EU acquis.

3-strikes is one proposal for copyright enforcement online. The Member States implementing it  are France and the UK (see my other articles on the UK's Digital Dconomy Bill). 

As we saw in the Telecoms Package, they do not need to specify 3-strikes, for it to mean 3-strikes. They can alter the liability of ISPs, such that ISPs will have to enforce copyright to avoid law suits, fines or prosecution.

 

Also, note that ACTA is not about copyright - it is about enforcement of coyright and other forms of intellectual property right. Tthe Commission says: 

It is important to have an international instrument
setting out a framework for addressing this type of infringement in order to
make sure that international partners have the same level of protection of
IPRs that the EU currently applies
, with all the due guarantees provided by
its acquis. Since internet content flows freely across borders, a minimum
set of internet enforcement rules will allow the EU right-holders to have
their intellectual creations respected in third countries and, in the case
of infringements, will equip them with legal measures to defend their
assets.



 I think we are working towards an EU harmonisation - it is just that the policy-makers do not want to tell us how. 

 

 

Here is the full text of the written question from MEP Alexander Alvaro,  and the written  answer  from DG Trade at the European Commission.

 

Parliamentary questions
22 January 2010
E-0147/10 WRITTEN QUESTION by Alexander Alvaro (ALDE) to the Commission
Subject: Anti-Counterfeiting Trade Agreement (ACTA)
[liability] European Parliamentary answers on ACTA
2 of 6 17/03/2010 11:37
Answer(s)
1. It was reported that 38 different nations have participated in
discussions about the text of the proposed Anti-Counterfeiting Trade
Agreement (ACTA). Why should that text be withheld from the public?
2. If there is consensus to make the proposed ACTA public, how promptly can
it be made public? And had the Chairperson and Coordinators of the
responsible INTA committee full access to the documents?
3. Can an approximate timeline for the negotiation of the proposed ACTA be
given?
4. Will the proposed ACTA address issues other than counterfeiting? If so,
why?
5. Will the proposed ACTA make changes to substantive intellectual property
law, or will it be limited to harmonising enforcement measures? If the
former, why?
6. If the proposed ACTA make changes to substantive intellectual property
law, why is this initiative being discussed in secret, instead of at the
World Intellectual Property Organisation (WIPO)?
7. Will the proposed ACTA impose obligations with respect to the Internet,
and if so, why?
8. Some commentators have claimed that the proposed agreement requires a
so-called 'Three Strikes' approach, whereby Internet services or Internet
access providers must terminate the access of Internet users accused of
having violated copyright law. Can it be stated authoritatively that the
agreement will not require or recommend a 'Three Strikes' requirement being
implemented by Internet services and/or Internet access providers?
9. Certain US officials have claimed that the agreement will impose no new
obligations upon the United States Government. Is it the case that the US
Government would undertake no responsibilities as a result of this
instrument, and if so, what benefit would accrue to the Commission by
entering into such an agreement with the United States of America?
E-0147/10EN
ANSWER given by Mr De Gucht
on behalf of the Commission
(15.3.2010)
1. The participants in the ACTA negotiations are the EU (representing its 27
Member States), the US, Japan, Switzerland, Canada, Australia, New Zealand,
Singapore, Korea, Mexico and Morocco. As is frequently the case in such
plurilateral trade-related negotiations, the ACTA parties have agreed that
negotiating documents would only be made public when an unanimous decision
in that sense is taken by the countries participating in the negotiations.
For the time being, certain participants to the negotiation remain opposed
to disclosing the documents, since the text is still under negotiation.
Under these circumstances, where compromises still have to be found between
different countries, and where arbitrations still have to be made at country
level as to the final position to be taken in the negotiations, it is not
unusual that negotiations are kept confidential for a certain time.
2. At the upcoming negotiating round, the Commission will strongly insist
with the other ACTA partners to agree on the release of the negotiating
documents. As soon as there is a consensus about the disclosure of the ACTA
negotiating documents, these documents can be immediately publicly released.
Nevertheless, the Commission has shared with the European Parliament
(particularly via the Committee on international trade) all relevant
Commission documents that have been shared with the Member States through
[liability] European Parliamentary answers on ACTA
3 of 6 17/03/2010 11:37
the former 133 Committee (now "Trade Policy Committee").
3. ACTA participants have publicly endeavoured to conclude the negotiation
this year. Seven rounds of negotiation have taken place since the
negotiations were launched in July 2008. The last negotiating round took
place between 26 and 29 January 2010 in Mexico. The following round is
foreseen to take place between 12 and 16 April, in New Zealand. Several
additional rounds will be necessary before the likely conclusion of the
negotiation, towards the end of the year.
4. The EU position is that ACTA should apply in general to infringements of
all intellectual property rights (copyright and related rights, trademarks,
patents, geographical indications, designs, etc
). This is the scope adopted
in the EU acquis about Intellectual Property Rights (IPR) enforcement (e.g.
Enforcement Directive 2004/48 , Customs Regulation 1383/2003 ).
Covering more than the counterfeiting of trademarks is necessary because a
wide range of EU economic operators rely on economic activities that need
IPR protection, e.g. high quality products (geographical indications),
innovative industries (patents), fashion and design (designs) or
entertainment and culture (copyright).
However, in the case of penal enforcement, the EU is proposing that ACTA
provisions should only apply to infringements of copyright and trademarks,
consistent with the TRIPs agreement. It is also important, in this context,
to keep in mind that the aim of ACTA is to tackle large scale IPR
infringement activities, mostly pursued by criminal organisations, and not
isolated individual IPR infringement activities.
5. ACTA should only address enforcement measures. It will not include
provisions modifying substantive IP law, such as the creation of new IP
rights or the definition of their duration, scope of protection,
registration, etc.
6. ACTA is not being negotiated at the WIPO (or at the World Trade
Organization) because there was no willingness among the membership of those
institutions to address the problems related to the enforcement of IPRs.
7. ACTA will indeed impose obligations with respect to the internet because
of its growing importance as a means of IPR infringement. The multilateral
legal framework, and namely the TRIPs agreement, was negotiated before the
expansion of the internet, and it therefore lacks the minimum standards to
address such problems. It is important to have an international instrument
setting out a framework for addressing this type of infringement in order to
make sure that international partners have the same level of protection of
IPRs that the EU currently applies
, with all the due guarantees provided by
its acquis. Since internet content flows freely across borders, a minimum
set of internet enforcement rules will allow the EU right-holders to have
their intellectual creations respected in third countries and, in the case
of infringements, will equip them with legal measures to defend their
assets.

8. There are no proposals on the table about the introduction of a
compulsory "three-strike" or "graduated response" system.
The Commission
will ensure that ACTA is in line with the current EU acquis and the current
level of harmonisation of IPR enforcement. The three-strike system is in
place or is envisaged in certain Member States but it is not part of the EU
acquis.

9. The Commission considers that the US enforcement system is generally
effective and efficient in the protection of certain IP rights. It is
understandable that US officials state that ACTA is not a disguised means to
circumvent their domestic legislative process and to revise their current
laws. The European Commission has stressed the same line on numerous
occasions and so has the European Parliament. An international treaty that
would adopt the common standards of both the EU and US legislation in the
area of IPR enforcement would still remain a most valuable contribution to
the current prevailing international standard, as defined by the WTO/TRIPs
[liability] European Parliamentary answers on ACTA
4 of 6 17/03/2010 11:37
Agreement.
Additionally, ACTA is not only about improved legal standards. It is also
about cooperation between enforcement authorities, the adoption of best
practices or the better coordination of technical assistance. Although the
EU has had very successful cooperation with the US in these areas for the
last 4-5 years, the Commission believes that ACTA can also improve these
important aspects of the fight against IPR infringements.
Furthermore, the United States are not the only participant in the ACTA
negotiations, and the Commission hopes that, in future, countries not
currently engaged in the ACTA negotiations will be able to join the
agreement.

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 = EU-wide copyright enforcement for the 'Net  http://www.iptegrity.com 17 March  2010




 

 

 

 

 

 

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