Since Spring 2008, the European Union, the United States, Japan, Canada, South Korea, Australia as well as a few other countries have been secretly negotiating a trade agreement aimed at enforcing copyright and tackling counterfeited goods (Anti-Counterfeiting Trade Agreement). Specifically, leaked documents [PDF here] show that one of the major goal of the treaty is to force signatory countries into implementing anti file-sharing policies under the form of three-strikes schemes and net filtering practices.
At a time when important debates are taking place on the need to adapt copyright to the digital age, this treaty would bypass democratic processes in order to enforce a fundamentally irrelevant regulatory regime. It would profoundly alter the very nature of the Internet as we know it by putting an end to Net neutrality.
See the most worrying provisions under discussions and the three core reasons for rejecting ACTA.
Written Declaration 12 asks EU negotiators to ensure that ACTA respects European citizens' fundamental rights to freedom of expression and privacy, and opposes provisions that would encourage Internet intermediaries to engage in surveillance or filtering of all Internet users' communications for potential copyright-infringing material. If 369 members of the European Parliament sign this declaration before July 8, it will become the official opinion of the European Parliament, and send a strong message to the EU ACTA negotiators. Around 253 MEPs have signed, but 116 MEP signatures are still needed — particularly from MEPs in Germany, the U.K., Italy and Poland.
With the latest round of ACTA [consolidated draft text (PDF)] negotiations having just wrapped up in Switzerland, and only one more round likely to take place, now is the time to ask your MEPs to sign Written Declaration 12 and ensure that ACTA protects the fundamental rights of all citizens and the open Internet. Please write and call the Strasbourg offices of Members of Parliament who have not yet signed before July 8. The list of Members who have not yet signed and require particular attention is here.
There is a narrow window of opportunity for MEPs to take a stand against ACTA — it is only during the Strasbourg plenary session of July 5-8 that MEPs will have an opportunity to sign Written Declaration 12 at the declarations table. It is crucial that MEPs understand the importance of signing Written Declaration 12 before moving on to the plenary session.
KEY Points to consider in ACTA
ISP immunity/three strikes
Under ACTA, ISPs are protected from copyright lawsuits as long as they have no direct responsibility for infringement. If infringement merely happens over their networks, the infringers are responsible but the ISPs are not. This provision mirrors existing US and European law.
Two key points need to be made here, however. First, the entire ISP safe harbor is conditioned on the ISP "adopting and reasonably implementing a policy to address the unauthorized storage or transmission of materials protected by copyright." (This is much like existing US law.)
An earlier footnote found in a leaked draft provided a single example of such a policy: "Providing for termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat infringers." In other words, some variation of "three strikes." That footnote is now gone from the text entirely.
New to this draft is an option, clearly targeting European law, that would explicitly allow Internet disconnections. Countries will be allowed to force ISPs to "terminate or prevent an infringement" and they can pass laws "governing the removal or disabling of access to information. So, basically, Internet disconnection and website blocking.
iPod-scanning border guards?
Early ACTA commentators often complained that the agreement might give customs officials the right to rifle through your bags and search your iPod, confiscating it if they determined that it contained any infringing songs. Border guards might become copyright cops, turning out the bags of anyone who has visited China, say, to see if they might be bringing home any illicit copies of movies or software.
This was always a strange idea; ACTA's backers are hunting bigger game than iPods. The draft text contains a "de minimis" provision that allows countries to exclude from ACTA enforcement "Small quantities of goods of a noncommercial nature contained in travelers' personal luggage."
The real copyright cops
ACTA contains "ex officio" language that allows customs officials and border agents to hold infringing shipments of goods without needing a rightsholder to complain first. Several options are still being considered in the draft, but all give the authorities the right to "act upon their own initiative" in releasing suspected goods at customs checkpoints.
Think twice about camcording a movie off the big screen. ACTA now requires all signatories to make this practice a criminal act, not merely a civil matter. The draft does note that "at least one delegation has asked for the deletion" of this section, though, so it may be an easy target for removal before the final version.
Several sections of the ACTA draft show that rightsholders can obtain an injunction just by showing that infringement is "imminent," even if it hasn't happened yet.
P2P without financial gain
ACTA requires criminal penalties against "willful copyright infringement" when done "on a commercial scale." Early drafts explicitly mentioned online piracy, and that still seems to be in view. Though this section remains under negotiation, the draft shows that this may apply to infringements "that have no direct or indirect motivation of financial gain."
In other words, P2P distribution, where this exact issue of financial gain has come up in numerous court cases.
At least one enterprising ACTA country has managed to insert this interesting line into the section on "enforcement procedures in the digital environment": "Those measures, procedures, and remedies shall also be fair and proportionate." A dig at Internet disconnections and three strikes remedies, which are often criticized on these grounds? Who knows—and it's still under debate.
More at ArsTechnica
“It provides for criminalization of copyright infringement, granting law enforcement the powers to perform criminal investigation, arrests and pursue criminal citations or prosecution of suspects who MAY have infringed on copyright”
There is a section that forces Internet Service Providers to report people suspected of internet piracy (people who upload and download copyrighted stuff). Local authorities then have the obligation to act without the need of a warrant. US and Canada are pretty much on-board. in The European Union Times
All MEPs from Portugal [Deputados Portugueses no Parlamento Europeu]
De 22 Eurodeputados Portugueses só 5 votaram na proposta [aqui em PT], será que os outros 17 não se interessam pela defesa dos direitos e liberdades dos Cidadãos que representam?
De Parabéns estão os seguintes Eurodeputados:
Edite ESTRELA Group of the Progressive Alliance of Socialists and Democrats in the European Parliament
Ana GOMES Group of the Progressive Alliance of Socialists and Democrats in the European Parliament
Diogo FEIO Group of the European People's Party (Christian Democrats)
Marisa MATIAS Confederal Group of the European United Left - Nordic Green Left
Rui TAVARES Confederal Group of the European United Left - Nordic Green Left
Provisions on Internet and information technology
An open letter signed by many organizations (FFII), including Consumers International, EDRi (27 European civil rights and privacy NGOs), the Free Software Foundation (FSF), the Electronic Frontier Foundation (EFF), ASIC (French trade association for web 2.0 companies), the Free Knowledge Institute (FKI) states that "the current draft of ACTA would profoundly restrict the fundamental rights and freedoms of European citizens, most notably the freedom of expression and communication privacy." The Free Software Foundation argues that ACTA will create a culture of surveillance and suspicion. Aaron Shaw, Research Fellow at the Berkman Center for Internet & Society at Harvard University, argues that "ACTA would create unduly harsh legal standards that do not reflect contemporary principles of democratic government, free market exchange, or civil liberties.
Even though the precise terms of ACTA remain undecided, the negotiants' preliminary documents reveal many troubling aspects of the proposed agreement" such as removing "legal safeguards that protect Internet Service Providers from liability for the actions of their subscribers" in effect giving ISPs no option but to comply with privacy invasions. Shaw further says that "[ACTA] would also facilitate privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process".
The Free Software Foundation (FSF) has published "Speak out against ACTA", stating that the ACTA threatens free software by creating a culture "in which the freedom that is required to produce free software is seen as dangerous and threatening rather than creative, innovative, and exciting." ACTA would also require that existing ISP no longer host free software that can access copyrighted media; this would substantially affect many sites that offer free software or host software projects such as SourceForge.
via Wikipedia on ACTA
Personally I intend to contact the Portuguese MEPs and I can only suggest you do the same to your MEPs before it's too late. If you’re interested in helping out visit La Quadrature du Net's campaign page for information and tips on contacting your Member of Parliament.
ACTA ALDE meeting (partial) in the European Parliament, 6 April 2010, Brussels part 2 : "Ceci n'est pas une pipe" - René Magritte
MEP Letter Example
Please help to make ACTA more transparent by supporting motion WD 12 2010
Dear MEP xx,
I urge you to sign the Written Declaration 12/2010 tabled by Françoise Castex, Zuzana Roithová, Alexander Alvaro, Stavros Lambrinidis which calls for greater transparency of the ACTA process.
The European Commission, the United States and eleven other countries have secretly negotiated the Anti-Counterfeiting Trade Agreement (ACTA) for over two years. ACTA is a global multilateral agreement that seeks to establish international standards to tackle the counterfeiting of goods, generic medicines and online copyright infringement.
I am worried, however that it will also threaten fundamental freedoms such as freedom of expression, introduce harsh punishments and makes the access to generic medicines more difficult.
Although I welcome the recent release of the draft text, I strongly believe that the whole process needs to be more transparent. The positions of individual countries remain in the dark, so European citizens still don't know who is pushing for the most severe measures such as the three strikes provision which could disconnect citizens from the internet.
Among other things Written Declaration 12/2010 asks that:
Written declaration on the lack of a transparent process for the Anti-Counterfeiting
Trade Agreement (ACTA) and potentially objectionable content
The European Parliament, – having regard to Rule 123 of its Rules of Procedure,
A. whereas negotiations concerning the Anti-Counterfeiting Trade Agreement (ACTA) are
B. whereas Parliament’s co-decision role in commercial matters and its access to negotiation
documents are guaranteed by the Lisbon Treaty,
1. Takes the view that the proposed agreement should not indirectly impose harmonisation
of EU copyright, patent or trademark law, and that the principle of subsidiarity should be
2. Declares that the Commission should immediately make all documents related to the
ongoing negotiations publicly available;
3. Takes the view that the proposed agreement should not force limitations upon judicial due
process or weaken fundamental rights such as freedom of expression and the right to
4. Stresses that economic and innovation risks must be evaluated prior to introducing
criminal sanctions where civil measures are already in place;
5. Takes the view that internet service providers should not bear liability for the data they
transmit or host through their services to an extent that would necessitate prior
surveillance or filtering of such data;
6. Points out that any measure aimed at strengthening powers of cross-border inspection and
seizure of goods should not harm global access to legal, affordable and safe medicines;
7. Instructs its President to forward this declaration, together with the names of the
signatories, to the Commission, the Council and the parliaments of the Member States.
By signing the Written Declaration 12/2010 you ensure that the call for transparency remains a top priority and put pressure on the European Commission to bring up the issue at the next ACTA round.
Please discuss the matter in your political group and among colleagues and urge them to sign the Written Declaration 12/2010 as well.
Reference PE 439.564v01-00 Or. EN or P7_DCL(2010)0012
Authors : Françoise Castex, Zuzana Roithová, Alexander Alvaro, Stavros Lambrinidis on the lack of a transparent process for the Anti-Counterfeiting Trade Agreement (ACTA) and potentially objectionable content
Date opened : 08/03/2010
Lapse date : 08/07/2010
Number of signatories : 253 - 17/06/2010 - 116 signatures left!
* ACTA must respect sharing and cooperation: it must do nothing that would hinder the unremunerated noncommercial making, copying, giving, lending, owning, using, transporting, importing or exporting of any objects or works.
* ACTA must not weasel about what is commercial: no labeling of any noncommercial activities as somehow commercial-like or treating them as if they were commercial.
* ACTA must not tighten digital handcuffs: it must not hinder any activity in regard to any product on account of its capacity to circumvent technical measures that restrict use of copies of works of authorship.
* ACTA must not interfere with individuals' noncommercial use of the Internet (whether or not carried out using commmercial Internet services) or undermine individuals' right or ability to connect to the Internet.
* ACTA must not require anyone to collect or release any data about individuals' use of the Internet. It must not harm privacy rights or other human rights.
* ACTA must not hold the companies that implement the Internet responsible for the substance of their customers' communications. (For example, no punishment by disconnection, neither explicitly required or indirectly compelled.)
* ACTA must not require copyright or patents, or any law similar to one of those, to attach to any particular sort of thing or idea.
* ACTA must not make any requirements about what acts constitute civil infringement, or what acts constitute criminal infringement, of copyright law, or patent law, or any law similar to one of those.
* ACTA must not use the propaganda term "intellectual property" or try to treat copyright law and patent law as a single issue.
* ACTA must not stretch the term "counterfeiting" to apply to copyright or patent infringement.
* If ACTA includes a mechanism for amendment, it must apply these requirements to all future amendments of ACTA.
Or, as a simpler alternative,
* Cancel ACTA entirely. Although parts of it are not objectionable, they are secondary to ACTA's threat to our freedom. Unless we are sure that the repressive aspects of ACTA are blocked, the main significance of ACTA is as a threat to society. Cancelling ACTA would be a fine way to get rid of this threat.
You can also join the ACTA Facebook group for more updates or follow #ACTA on twitter.
Sources: The Electronic Frontier Foundation, ArsTechnica, La Quadrature du Net....