25th Oct 2016


EU's secretive anti-piracy talks cause concern

EU officials are working on a global intellectual property treaty which could rewrite national legislation on copyright but which is being put together in a secretive process which helps to "launder" policies that may be too unpopular to pass through normal democratic channels.

The EU and industrialised countries such as the US, Canada, Australia and Japan have since last spring been negotiating a trade pact known as Acta - the Anti-Counterfeit Trade Agreement.

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  • Internet cafe: the US is pushing for global version of the "three strikes law" (Photo: Lee Jordan)

The treaty has been presented first and foremost as a way of tackling physical forgeries, such as designer handbags or or pirated DVDs. But leaks reveal that it will also have a much broader scope, including the sensitive issue of intellectual copyright on the internet.

A document from the latest round of Acta talks, held in South Korea last month, reveals that the US is pushing for a global version of the so-called "three strikes law" - a measure by which people who illegally download music or films receive warnings but ultimately face having their internet cut off and going to jail.

The leaked text, a three-page European Commission memo written by an unnamed official, purports to summarise a private briefing given by US trade officials.

"The US wants Acta to force ISPs [Internet Service Providers] to put in place policies to deter unauthorized storage and transmission of IP [Intellectual Property] infringing content (for example clauses in customers' contracts allowing a graduated response)," it says. The term "graduated response" is jargon for the three strikes law.

France recently passed a three-strikes bill, with the UK, Spain and the Netherlands reportedly working on their own versions. But the controversial legislation is highly unpopular, with some critics saying access to information on the internet is a basic human right.

The Acta talks are taking place outside all existing multilateral treaty-making bodies such as the World Intellectual Property Organisation (WIPO), the UN or the WTO. They are also taking place in extreme secrecy,‭ ‬making it impossible for elected politicians, media or the public to get access to official documents.

The status quo has created a situation in which leaks give rise to rumours and conspiracy theories, while critics say Acta is part of a broader trend of "policy laundering" by governments who support harsh IP regimes. Policy laundering means negotiating for terms in international treaties that might prove too unpopular to pass in national parliaments.

Meanwhile, the exclusivity of the Acta talks means that countries such as China, India and Russia, which are major targets of any new IP legislation and which have a say in the WTO or WIPO but not in Acta, will be presented with a fait accompli down the line.

"Acta continues its career as the most shocking circumvention of democratic governance in the already long history of copyright and patent regulation," Jeremie Zimmerman from the France-based internet freedom pressure group, La Quadrature du Net, has said.

"The interest groups and fundamentalists of property on information, culture and knowledge are trying to find hidden paths, such as multilateral agreements, for co-operating governments to push forward their agendas in complete secrecy."

Some of the most eye-popping blog and press reports claim that under Acta customs officials could end up going through travellers‭' ‬mp3‭ players and laptops to look for pirate files or that ISPs will be forced to spy on their customers.

With negotiators gagged by the procedure, it is impossible to say which rumours are false or true - a problem noted by European politicians.

"I experienced the lengthy discussion about the EU's telecom package and the worry that internet users expressed about the risks of being cut off," Swedish telecom minister Asa Torstensson said earlier this week after a meeting with US trade officials. "It shows the importance of transparency around these negotiations. We now have a similar debate about Acta coming up."

Some EU diplomats say that the Acta secrecy is nothing unusual as far as international talks go, however.

"Right or wrong, these negotiations are not being conducted in any different way from other international trade negotiations," an EU diplomat from the bloc's so-called "Article 133 Committee" on trade, said.

"International trade agreements are always 'take it or leave it' deals for national assemblies to decide upon, and this deal will in the end need approval from national parliaments or the European Parliament."

"I do not think anybody outside the meeting room knows what is said in the EU negotiations with Iran or North Korea," he added, by way of comparison.

According to the diplomatic contact, about half of the 27 EU states believe that increased Acta transparency, such as a publicly-availabe document to point to, would boost public confidence.

"This issue is so infected by rumours and speculations, it is about time someone killed a couple of myths around it," he said.

The diplomat added that "EU officials simply cannot give into any demands from their US peers that go beyond national or community laws existing in EU countries, like for instance the American request for a global 'three strikes and you're out'- principle."

"The commission's negotiators do not have the mandate for that," he said.

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