The ghostly spectre of the Telecoms Package that has stood behind ACTA, is becoming more clearly discernible. And a devious PR move by  the ACTA negotiators is bad news for Internet users.

Following the Washington meeting of the ACTA (Anti-counterfeiting Trade Agreement)  negotiators in August, it is now emerging that the requirement for secondary liability on ISPs could be dropped. Apparently, this is at the request of the US.

But is this just a  cynical public relations manoevre on the part of the ACTA negotiators? Analysis of the latest ACTA leak indicates that removal of the offending paragraph will not change a great deal in terms of the substance of ACTA  (see below). And a paragraph that is remarkably similar to one in the Telecoms Package remains in.

Reports from the US have suggested that the proposal is to  ‘remove controversial language [that would] impose secondary liability on Internet firms'.  However, we don't know exactly which provisions are implied, as the source of the information has not been so specific.

As is explained  in a blog posting on the American University Washington College of Law website, the obvious paragraphs that could go are 3b and 3c of  Article 2.18. These are the two paragraphs which set out clearly a liability for ISPs to remove or prevent access to content which is deemed to infringe copyright and other forms of intellectual property.

 But questions would still remain concerning two further paragraphs :  3 ter and 3 quarter.

3 ter is about disclosure of users' personal data to rights-holders - a necessary precursor for 3-strikes or and similar enforcement measures targetting Internet users and could contravene the E-privacy directive.

3 quarter is a blatant re-write of Article 33.3 in the Universal Services Directive. This is a key enabler of 3-strikes and similar measures.  ‘Promote the development of     mutually supportive relationships between online service providers  and right holders‘  is a euphemism for ISPs and rights-holders working together on enforcement measures, where 3-strikes will be top of the list (think of Eircomm).

 ‘Establishing guidelines for actions'  could mean putting in place a regulatory structure for a system of warnings and sanctions. Equally, it could relate to blocking measures, or,  to some form of Notice and Takedown procedure.  

The power of the provision lies in its vagueness and possible applicability to a range of different enforcement measures.

For the EU, the provision would have serious consequences. It goes a long way beyond the Telecoms Package, which, in this context, only applies to copyright. The ACTA provision brings in patents, industrial design and trademarks, and questions must asked as to whether these kinds of measures could therefore be applied to IP infringements other than copyright. Such interpretation  would be outside the scope of EU law as it stands today.

It raises the possibility of widescale sanctioning of users and  blocking measures for a range of purposes, and would appear to encompass the demands of the large luxury goods manufacturers who have  pursuing eBay in the courts.

Once again, it gives the lie to the continued assertions of DG Trade, that ACTA will not mean 3-strikes or similar enforcement measures. 

Moreover, the subtle use of ‘shall' would reverse an amendment made by the Council of Ministers, which makes the EU provision optional. Some EU Member States, such as Sweden and Germany, have taken decisions not to go the 3-strikes route.

ACTA:  Anti-counterfeiting Trade Agreement

Article 2.18

3 quarter:

"Each Party shall  endeavor to promote the development of

   mutually supportive relationships between online service providers

   and right holders to deal effectively with patent, industrial

   design, trademark and copyright or relater [sic] rights infringement which

   takes place by means of the Internet, including the encouragement of

   establishing guidelines for the actions which should be taken."

 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 & the Telecoms Package: a mutually supportive relationship? http://www.iptegrity.com 28 August 2010 

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