Negotiators Publish Near-Final ACTA Draft

The European Commission on Wednesday released a near-final draft of the controversial Anti-Counterfeiting Trade Agreement (ACTA), following a final round of negotiations last week.

Some observers said the enforcement measures represented in the latest draft lacked teeth, while others accused the ACTA negotiators of undermining democratic processes through the secrecy that has surrounded the negotiating process.

Greater flexibility

The draft includes a number of changes from the previous version, released in April, including greater flexibility in the provisions aimed at preventing the circumvention of copy-protection measures. Michael Geist, a Canadian lawyer, noted in a blog post that the April draft included a specific reference to the penalisation of circumventing technology designed to control access to a work.

“This language is now gone,” Geist noted. “There is no requirement in ACTA for a prohibition on access controls.”

Geist noted that the current draft, like the April draft, has eliminated any obligation on ISPs to monitor their users and penalise them for suspect activity.

“A party may provide new laws, but is not required to do so,” Geist wrote.

The US Chamber of Commerce voiced disappointment with the agreement, with Rob Calia, senior director for counterfeiting and piracy at the US Chamber of Commerce, telling Bloomberg that the agency was “disappointed that a more specific agreement was not possible at this time”.

Secrecy questioned

La Quadrature du Net, a activist group critical of ACTA, noted that while ISPs aren’t given liability in the draft, the draft calls on them to work more closely with rights holders, which could pave the way for more restrictive laws.

“Included is a call for a closer cooperation between Internet Service Providers and rights holders, which could lead party countries to implement measures that turn Internet actors into a private copyright police,” La Quadrature du Net stated.

The organisation criticised the “dogmatic” approach to copyright embodied in ACTA and the secrecy surrounding the negotiating process.

“The release of this near-final version of ACTA does not satisfy the transparency requirement of democracy, since citizens and their elected representatives are put before a ‘fait accompli’,” stated La Quadrature du Net spokesman Jérémie Zimmermann. “Ratification of ACTA must be opposed by all means.”

The EC said the draft is designed to work within the existing framework of EU law and thus there should not be anything preventing the European Parliament from ratifying it.

“ACTA aims to establish a comprehensive, first-time, international framework that will assist Parties to the agreement in their efforts to effectively combat the infringement of intellectual property rights, in particular the proliferation of counterfeiting and piracy, which undermines legitimate trade and the sustainable development of the world economy,” the negotiating governments said in a joint statement.

Last week four MEPs issued a joint statement calling on the Commission to give the European Parliament better access to the ACTA materials, and warning the Parliament will not approve the agreement without sufficient time to study the final draft of the agreement.