How far will ISPs be held liable for infringement of intellectual property rights under ACTA? On close examination in the EU context, we also come up against another question: is ACTA re-writing the weak "compromise" on Internet users rights that was rejected by the European Parliament in the Telecoms Package?

In previous drafts of ACTA (Anti-Counterfeiting Trade Agreement), liability for ISPs in enforcing copyright on the Internet was clearly stated. In the latest leaked draft of 25 August 2010, it appears to have been deleted. At least the substantive text requiring countries to implement a liability provision is not there.

However, there has been quite a re-write of the substantive text regarding the Internet, and a closer look at it would indicate that liability remains there, it has just been a little bit obscured. Moreover, the new text in ACTA is arguably a reflection of

the weak so-called "compromise" which was rejected by the European Parliament in the second reading of the Telecoms Package.

We have seen in Europe how the policy-makers, backed up by rights-holder lobbying, can become very skilled at altering wording to obscure their real intentions. We have also seen how they attempt to insert lip-service to users' rights, but in fact create a provision which means the opposite.

As explained by Sean Flynn of the American University Washington College of Law , the latest ACTA leaked draft has deleted the explicit wording on ISP secondary liability in the text, which was previously in sections 2 and 3 from Article 2.18. That change also removes the requirement for a US-style "safe harbor" system.

This explicit wording on liability has been replaced by a text which is vague and obscure. ACTA now specifies that IP enforcement procedures "shall provide the means to address the infringement of rights in the digital environment, including infringement that occurs via technologies (or services) that can be used to facilitate widespread infringement"

Checking the footnotes very carefully, it states: Examples ( of the technologies or services that can be used to facilitate widespread infringement) may include unlawful file sharing and unlawful streaming).

Thus, it is quite clear that this provision is intended to create measures against P2P - and also against streaming services. Such measures would include 3-strikes. 'Unlawful streaming' could surely be used by rights-holders in their legal fights against Google YouTube.

The controversial Article 3quarter has been replaced by a new provision which talks about promoting "cooperative efforts" which should be taken 'within the business community' to 'address infringement' . 'Cooperative efforts' reprises the Telecoms Package language of 'co-operation' between rights holders and ISPs for the purposes of enforcing copyright. Paraphrasing, the 'co-operative efforts' are intended to get the ISPs to take 'effective action against' peer-to-peer and web streaming services. Such 'effective action' could take a number of forms, one of which could be a graduated response/3-strikes regime.

But here's the rub. The new provisions 2 and 3 both incorporate the words: "preserve principles relating to freedom of expression, fair process, and privacy [EU: , among other [US: fundamental] principles". This is the phraseology which reminds me of the weak compromise in the Second Reading of the Telecoms Package, which the European Parliament rejected.

'Other fundamental principles' are defined in a footnote which states that they could include: . "adopting or maintaining a regime providing for limitations on the liability of, or on the remedies available against, online service providers while [US: respecting ][EU: taking into account] the legitimate interests of rightholders. "

If one breaks this paragraph apart and considers carefully the individual elements, one can re-phrase it: a regime which maintains limitations on the liability of - and remedies against - ISPs; and which at the same time takes account of the interests of the rights-holders to enforce copyright.

Such a regime is graduated response.

Does this text then really alter the meaning of the provision for imposing liability for copyright infringement onto ISPs? It would seem to me, that on the contrary, it is attempting to build such liability into the law as a fundamental principle. No such principle currently exists in EU law.

The inclusion freedom of expression and fair process would appear to be mere lip-service to fundamental rights. It is not clear what 'fair process' could mean under EU law. Moreover, it will weaken the provision in the Telecoms Package which is current EU law.

As we know from the Telecoms Package debates, measures such as 3-strikes represent a very real threat to the rights and freedoms of Internet users. The ACTA text is a very poor show for the Commission which is Guardian of the Treaties and of our fundamental rights.

As pointed out by Philippe Aigrain, of La Quadrature du Net : "The attacks on freedoms may become less visible in the final agreement, but they will be no less present."

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Notes on some of the non-Internet aspects of the 25 August 2010 version of ACTA are available from KEI Online

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 serves up a rejected Telecoms Package clause http://www.iptegrity.com 1

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