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22nd Jan 2022

EU defends final Acta text on counterfeiting

  • Media leaks have created a storm of controversy around the Acta negotiations (Photo: Rupert Ganzer)

Final negotiations for a controversial Anti-Counterfeiting Trade Agreement (Acta) have been completed in Tokyo, with EU sources insisting that the draft accord will not restrict the freedoms of EU citizens or require legislative changes.

The final text, released at 4pm Brussels-time on Wednesday (6 October), still contains a number of minor language issues that need ironing out, but this can be done without convening a new negotiating round, say officials.

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MEPs - fierce critics of the secretive nature of the talks which started in 2008 - will be debriefed on Thursday, with their approval and ratification in all signature countries needed before the deal becomes binding.

Acta supporters say the multilateral agreement is a necessary measure to combat the growing trade in counterfeited goods and online piracy, with all 27 EU states, plus 10 others taking part in the negotiations.

These are: Australia, Canada, Japan, the Republic of Korea, Morocco, New Zealand, Singapore, Switzerland, Mexico and the US.

Critics say the omission of China from the list - the main source of the world's counterfeit goods - makes the deal almost worthless, an argument strong refuted by the EU. "It sets important best practices which we hope will be followed," said one official close to the negotiations, pointing to Chinese entry into the WTO in 2001, roughly seven years after the trade organisation was set up.

Wednesday's final text includes chapters on 'civil enforcement', 'border measures' and 'enforcement of intellectual property rights in the digital environment', sparking fears earlier this year that the Acta legal framework could result in large scale monitoring of internet users.

European Data Protection Supervisor (EDPS) Peter Hustinx was also among those who earlier warned that the deal could result in the international imposition of 'three strikes' laws such as that passed in France, a rule which enables national authorities to cut off the internet access of people accused of illegal downloading.

Wednesday's text appears to say nothing on the rule. "You will not find it mentioned in any part of the text," said the EU official, indicating that Acta signatories would be free to implement the 'three strikes' rule if they wished, but are not obliged to do so.

Another controversial issue revolves around the issue of third party liability, with concerns that the agreement would make Internet service providers liable for infringement that takes place on their networks.

While the latest draft gives countries the right to order an ISP to provide information about someone who is infringing copyrighted works, it requires that such procedures "shall be implemented in a manner that avoids the creation of barriers to legitimate activity."

Changes from earlier drafts include a section that previously placed a ban on all tools that could be used for copyright infringement, such as file-sharing software, but now focuses only on tools that are primarily designed for such purposes.

Some critics were still sceptical about the final text, however. "Whatever happens, it's still circumvention of the democratic process," Jérémie Zimmermann, the co-founder of the French digital rights group La Quadrature du Net, told the technology website ZDNet UK.

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