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The controversial secrecy surrounding the ACTA (Anti Counterfeiting Trade Agreement) discussions has finally been cleared as last week the EU published working text from the last round of discussions held in Wellington, New Zealand earlier this month.

Darren Farnden, Head of Marketing

Darren Farnden, Head of Marketing

Previously the Governments involved have been severely criticised for the secretive manner in which the talks have been held and their refusal to publish any details. After two years they have finally backed down and a working text document has been released. We expressed our concerns regarding this issue in our previous opinion article:

The working text document starts by positioning the purpose of the talks stating “The ACTA initiative aims to establish international standards for enforcing intellectual property rights in order to fight more efficiently the growing problem of counterfeiting and piracy.”

It goes on to detail four main areas of discussion; Civil Enforcement, Border Measures, Criminal Enforcement and Intellectual Property Rights Enforcement in the Digital Environment.

EuroISPA were amongst the first in the industry to raise their concerns over the published document stating that the new measures will leave ISPs with “no alternative other than to monitor the internet traffic of consumers”. The working text document implies that those providers that block access to illegal content will be immune from prosecution, which implies that those that don’t will be liable. Previously the role of the ISP has been as a mere conduit of information and data and if implemented this proposal would once again force ISPs into the much debated role of the Internet police, something that has already been significantly debated within the DEA (Digital Economy Act).

EuroISPA believes that these proposals will “damage the industry sector via the creation of undue liability on ISPs, invading personal privacy and generally jeopardising the openness of the Internet.” We completely agree with them. As we have stated many times in the past we do not believe that ISPs should be forced to become the Internet police (Entanet Opinion: ISP – Internet Service Provider or Police?). You would not expect the postal service to open and check all of your mail and the same is true of the Internet. ISPs are just the delivery channel, the data transferred is none of our business and to inspect it would be to impose on our customers’ privacy.

There is some good news contained within the document. It has been clearly stated that no participating state has any intentions to attempt to introduce any form of three strikes ruling, forcing disconnection from the Internet for persistent offenders. This is something that a number of states including France had previously been very supportive of. However this ‘good news’ is irrelevant to UK citizens as the UK government has already hastily introduced the DEA which contains legislation to introduce ‘further measures’ to tackle illegal file sharing if deemed necessary in the future. These ‘further measures’ are expected to include traffic shaping and even disconnection, so once again the Government can’t make up its mind, agreeing to hold back on such measures within the ACTA discussions yet at the same time implementing the opposite via the DEA.

So why disclose the details now?

Why have the participating governments decided to remove the secrecy and disclose the details of their talks after two years of refusal?  The working text document states “A variety of groups have shown their interest in getting more information on the substance of the negotiations and have requested that the draft text be disclosed. However, it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation. This allows delegations to exchange views in confidence facilitating the negotiation and compromise that are necessary in order to reach agreement on complex issues. At this point in time, ACTA delegations are still discussing various proposals for the different elements that may ultimately be included in the agreement. A comprehensive set of proposals for the text of the agreement does not yet exist.”

So it looks like they finally gave into mounting pressure from the likes of EuroISPA and decided to release the details, possibly to curb the growing amounts of slightly ridiculous speculation such as the reported confiscation of iPods containing copyright infringing material at airports. The European Commission apparently welcomed the decision to make the draft public stating “This text shows that the overall objective of ACTA is to address large-scale infringements of intellectual property rights which have a significant economic impact. ACTA will by no means lead to a limitation of civil liberties or to “harassment” of consumers.”

Whilst we agree that copyright infringement is a growing and important issue that needs tackling we do have concerns over the proposals in their current form. Admittedly following the introduction of the DEA these proposals probably have less of an impact on UK ISPs than many of our European counterparts however they do take a number of existing regulations a leap further. We reiterate our belief that ISPs should not be the Internet police and suggest that the participating states carefully consider the potential liability they are enforcing on ISPs as they continue their talks.

We also believe that the Internet industry should be adequately represented in these talks. Lobbyists from the entertainment industry have already been privy to the discussions yet the Internet industry has had no voice, to ensure fairness and reduce the potential for bias we request that the Internet industry be afforded the same level of involvement.

As expected the release of the ACTA working text has resulted in even further debate and speculation however the removal of the secrecy shroud can only be a good thing in my opinion. At least now all of the affected stakeholders can have their say officially or unofficially through the media and vocally raise their concerns. At the end of the day we must remember that this is an early working text document and that the discussions are expected to continue for some time yet. We will have to wait and see how they progress and see what else gets proposed. After all, just remember how many amendments were made to the DEA.

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