Cookies on Pinsent Masons website

Our website uses cookies and similar technologies to allow us to promote our services and enhance your browsing experience. If you continue to use our website you agree to our use of cookies.

To understand more about how we use cookies, or for information on how to change your cookie settings, please see our Cookie Policy.

Secret copyright treaty published

A secretive global negotiation on new copyright rules will not force countries to adopt 'three strikes' internet disconnection policies. A draft of the Anti-Counterfeiting Trade Agreement (ACTA) has been published officially for the first time.21 Apr 2010

The treaty, which is being negotiated outside of existing trade bodies the World Trade Organisation and the World Intellectual Property Organisation, has been the subject of negotiation by governments for two and a half years, but its contents have been kept secret from citizens, until today.

Under pressure from digital rights activists and following the European Parliament's vow last month to take the European Commission to court if the documents were not published, the governments negotiating the treaty have agreed to publish the current draft.

It reveals that fears that the Agreement would force all signatory governments to disconnect businesses and households from the internet after three accusations that copyright infringement had taken place were ill-founded.

ACTA does say, though, that the existing immunity of internet service providers (ISPs) from legal action because of subscribers' copyright infringements should be dependent on it taking action to curb infringement.

The Agreement lays out two options, either of which might be agreed on when the treaty is ratified later this year.

One option says that ISPs' immunity from liability for users' actions should depend on their having 'adequate' policies in place to stop the activity, which could include termination of access.

ACTA says that in this first option ISP immunity depends on "an online service provider adopting and reasonably implementing a policy to address the unauthorized storage or transmission of materials protected by copyright or related rights … and an online service provider expeditiously removing or disabling access to material or [activity][alleged infringement], upon receipt [of legally sufficient notice of alleged infringement,]".

ISPs will not have to engage in this removal or disabling, it said, if they are acting "solely as a conduit for transmissions" on its network.

The other option contained in the document said that ISPs will have to disable access to infringing material or activity as soon as they are told about it if they want to retain their immunity. It makes it clear, though, that no "general monitoring requirement" must be placed on providers, meaning that they will not have to actively police their networks for infringing activity.

The treaty demands that signatories pass laws making it an offence to get around the technical measures used to stop the copying of material sold on CDs, DVDs or other digital media.

"Each Party shall provide for adequate legal protection and effective legal remedies, in the form of civil remedies or criminal penalties in appropriate cases of wilful conduct, against the circumvention of effective technological measures that are used by authors, performers or producers or phonograms in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonogram," it says.

That is already part of UK law. The Copyright, Designs and Patents Act forbids the circumvention of copyright protection measures.

There were fears at one point that ACTA would demand that signatory countries search people on their way in and out of the country, checking digital media devices for copyright infringement. The treaty specifically excludes such activity from its scope.

"Parties may exclude from the application of this Section small quantities of goods of a non-commercial nature contained in travellers’ personal luggage [or sent in small consignments.]," it says.

The treaty is being negotiated by the US, Japan, South Korea, Mexico, Canada, New Zealand, the European Commission and others. The European Parliament had called for the text of the negotiations to be made public and passed a vote last month insisting on transparency.

"The ongoing EU efforts to harmonise IPR enforcement measures should not be circumvented by trade negotiations which are outside the scope of normal EU decision-making processes," said the resolution. "Any agreement reached by the European Union on ACTA must comply with the legal obligations imposed on the EU with respect to privacy and data protection law."

"Unless Parliament is immediately and fully informed at all stages of the negotiations, it reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives," it said.

The Commission said that it welcomed the publication. "I am very glad that the EU convinced its partners to release the negotiation text", said EU Trade Commissioner Karel De Gucht. "The text makes clear what ACTA is really about: it will provide our industry and creators with better protection in overseas markets which is essential for business to thrive. It will not have a negative impact on European citizens."

"The Anti-Counterfeiting Trade Agreement will be fully in line with current EU legislation," said a Commission statement. "This means that it is limited to the enforcement of intellectual property rights. The agreement will not include provisions which modify substantive intellectual property law, create new rights or change their duration. It will set minimum rules on how innovators and creators can enforce their rights in courts, at boarders or over the internet."