Another interesting twist on the ACTA story came out of the European Parliament London seminar last week. The rights-holders, who seem to be struggling to hold their nerves at the moment, are now saying that ACTA 'only' applies to 'commercial scale' activities. But this is precisely one of ACTA's problem points, according to the European Parliament's rapporteur.

The issue of 'commercial scale' was referred to at several points during the question and answer session.

Susie Winter, representing the Alliance Against IP Theft, defended ACTA (Anti-counterfeiting Trade Agreement) by saying that the agreement is only about commercial scale activities. If I understand her point correctly, it would therefore not concern individuals.

However, the European Parliament's ACTA rapporteur, David Martin, was also speaking at the seminar. Mr Martin said that 'commercial scale' is one point that he is not happy about in ACTA, because there is no definition of it:

"Usually people say the devil is in the detail. The problem with ACTA is that the devil is in the lack of detail" he said.

And on the specific issue of defining commercial scale Mr Martin said: "Had ACTA been more transparent, these issues could have been dealt with at the time, For example, commercial scale could have been defined in a footnote. "

David Martin seemed to be saying that if the ACTA process had been more open, and there had been more discussion about it, then issues such as this could have been addressed at the time of the negotiations, and there would not be conflict about it now.

There has been a discussion bubbling under the surface for some time about the definition of 'commercial scale' activities. It's relevant because it may determine whether or not someone is deemed to have committed an infringement which can be sanctioned under ACTA measures.

Ms Winter suggested that 'commercial scale' is defined in the TRIPs agreement and in Britain's Copyright, Designs and Patents Act, adding 'the courts are still the ultimate arbiter'.

Notwithstanding that I cannot find such a definition in the TRIPs agreement, it's interesting therefore that the rights-holders are now suggesting that the courts will be involved. As they have been explicitly trying to bypass court processes, one might ask if this could be a slight U-turn on their part.

However, Ms Winter gave a hint as to the possible definition of commercial scale. It's not just about those who charge directly for a purchase or subscription, it's about people who make 'huge sums' from advertising.

I would then infer that if advertising is the criteria, the ACTA targets will be search engines, linking sites, torrent trackers, streaming services, and possibly at a stretch, the ISPs.

On that basis, how should we rate ACTA?

See European Parliament go-ahead for ACTA vote for more on the European Parliament London ACTA seminar

This is an original article from Iptegrity.com. You may re-publish it under a Creative Commons licence, but you should cite my name and provide a link back to iptegrity.com. Media and Academics - please cite as Monica Horten, ACTA: what is commercial scale? www.iptegrity.com, 22 May 2012 . Commercial users - please contact me

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