How close were we to getting an ISP liability regime in ACTA? New leaked documents reveal more about what went on and how the EU and US are trying to sort out their differences.


A raft of EU documents discussing changes to the ACTA   (Anti-counterfeiting Trade Agreement) emerged unexpectedly in the public domain yesterday. The documents, which appear to originate from within the ACTA team in DG Trade, signal that the the US and EU are close to sorting out their differences, with the EU 'winning' on some matters.


One particular  document clarifies that the Internet enforcement provisons apply

to all IP rights, including geographic indicators - implying that the EU has scored over the US to get the latter into the agreement. 


The Commission also boasts that it has negotiated ‘innovative provisions' for enforcement on the Internet, and that it was close to achieving a detailed regime on ISP liability,  which would have applied to trade marks as well as copyright. In the document, it states: 


 5.3. general provisions on ISP liability (although we were very close to achieving a more
detailed regime
, broadly inspired by EU acquis), applicable also to trademarks
(matters for the EU textile, luxury and cosmetics sectors) (article 2.18.2 and 2.18.4);


It's notable that the examples of the trade marks that would be protected state ‘textile, luxury goods and cosmetics' giving us a fair indication of who has been lobbying for these provisions. At a guess, they include luxury goods conglomerate  LVMH and the cosmetics firm, L'Oreal.


However,  there is  still  some ambiguity about  the position of trade marks in ACTA.  


 In another document, which details the changes to the actual text of ACTA, one paragraph indicates that trade marks  are now excluded from the requirement to apply ACTA enforcement measures to the Internet. These measures must be applied to copyright on the 'Net, and  trade marks are crossed out.


2. Further to paragraph 1, eEach Party's enforcement procedures shall apply to

infringement of at least trademark and copyright or related rights over digital networks,

including which may include the unlawful use of means of widespread distribution for

infringing purposes.



But the next paragraph leaves in trade marks, which will  be incorporated within  the "co-operation" measures between ISPs and rights-holders. "Co-operation"   is code for graduated response /3-strikes, but - if you think about it carefully -  the inclusion of trade marks  could also open the door for attacks on eBay. Such an interpretation would be consistent with the view that LVMH and L'Oreal are key lobbyists, as both have sued eBay in the courts. 


This has apparently been done to sort out a difference between the EU and the US. However,  it would require  an extension of EU law, and it is not clear on what basis it could be agreed. "Co-operation" under the Telecoms Package is about copyright, not trade marks - any attempt to include trade marks in this respect would be an extension of the EU acquis.


Peer-to-peer filesharing   clearly remains the target however.


The meeting of ACTA negotiators is scheduled to take place in Sydney, Australia, on 30 November to 4 December. Interestingly, the negotiating venue is near  the lively area of downtown Sydney, near its famous harbour,  know as The Rocks - and there's a special note to that effect in the information. ACTA negotiators clearly like to live the high-life!

At public expense, of course! 


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)  Latest ACTA leaks: EU boasts of ‘innovative' Internet enforcement , 9 November 2010