In the discussion about the liability of ISPs and whether and how ACTA provides for it, one clause that deserves to get the spotlight thrown more sharply onto it is Article 2.5: "Provisional Measures".
This clause provides for a court to order the blocking of websites, and actions against ISPs on the application of the rights-holders. In the UK, we have already had this debate, since there is a clause rather like this in the Digital Economy Act. ACTA would appear to taking from the DE Act.
The DE Act clause wasput there following rights-holder lobbying for measures to take account of future technological developments. Indeed, there is evidence that the clause was written by the British recorded music industry lobby group known as the BPI (see my previous articles on this topic). It was deeply unpopular and provoked a public protest, and is in the law because the previous Labour regime whipped its members to vote for it in the dying days of the last discredited Parliament.
The UK clause will have to go to the European Commission for a compliance check against EU law and will again be put before the UK Parliament.
The ACTA provision in Article 2.5 applies to both websites and ISPs. What is not clear in ACTA Article 2.5 is the circumstances under which action could be taken against ISPs and exactly what that action could consist of. What does "prevent any imminent infringement of an intellectual property right" mean in the ISP context? Does it just mean that the court could order the ISP to filter out the alleged infringing websites, pages or domains? Could it be used to prevent the ISP from carrying out its business? Will it result in an increased liability for ISP, who may end up over-blocking in order to comply with the injunction?
ACTA Article 2.5 appears to say that courts may order such measures even before proceedings begin. The ACTA further provides for seizure of goods. This is not just about impounding some badly recorded DVDs at a car-boot sale. It could refer to web servers, and its implications are serious. P2P tracker sites could be immediately terminated by such action. The implications of this leading to censorship must be considered.
But we must consider what it means for next generation technologies. How far could it be used to kill new developments before their inventors have a chance to develop a business proposition - if all a rights-holder has to do is to say that a techology could be used to infringe copyright?
In the context of the EU aquis communitaire, ACTA Article 2.5 would need to be examined to see exactly what legal changes are necessary. Such changes would not only apply to copyright, but to all intellectual property rights covered by ACTA.
ARTICLE 2.5: PROVISIONAL MEASURES
[EU/CH/J: 1. Each Party shall provide that its judicial authorities shall have the
authority, at the request of the applicant, to issue a provisional measure intended to
prevent any imminent infringement of an intellectual property right. Such provisional
measures may also be issued under certain conditions in relation to an intermediary
whose services are being used by a third party to infringe an intellectual property right.
Each Party shall also provide that provisional measures may be issued, even before the
commencement of the proceedings on the merits, to preserve relevant evidence in
respect to the alleged infringement.]
UK Digital Economy Act
17 Power to make provision about injunctions preventing access to locations on
(1) The Secretary of State may by regulations make provision about the granting
by a court of a blocking injunction in respect of a location on the internet which
the court is satisfied has been, is being or is likely to be used for or in connection
with an activity that infringes copyright.
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 & web blocking - measuring the threat http://www.iptegrity.com 9 September 2010