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13th May 2021

US keen for EU to adopt controversial anti-counterfeiting treaty

  • The US says it doesn't back internet cut-offs for piracy (Photo: Billy R)

The US does not support automatic internet cut-offs on the French model, but wants to pursue legally those users who download pirate copies of movies and music. The provision is embedded in a controversial anti-counterfeiting treaty (Acta) pending approval of the European Parliament.

"It's a very serious problem, not only for US companies, but also for European ones to protect their intellectual property rights," US ambassador to the EU William Kennard told journalists on Wednesday (16 February) in Brussels.

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The American diplomat expressed his government's eagerness to see the Acta agreement passed this year by the European Parliament. The deal aimed to fight pirated goods worldwide was sealed in December 2010 after four years of secretive negotiations between the US, Canada, Japan, the EU, Switzerland, Morocco, Australia, New Zealand, Mexico, South Korea and Singapore.

He defended the US government position on anti-piracy laws as being "somewhere in the middle" between those who advocate against any kind of control of free sharing activities and the more restrictive countries, such as France, where online piracy can lead to Internet cut-offs.

"We will fight piracy by lawful means, not necessarily a trial, but at least some administrative procedure, so that people don't find that their Internet connection goes black, just because someone thinks they're downloading movies illegally. This doesn't seem right to us," he said.

On the controversial issue of internet service providers (ISPs) tracking and handing over to police traffic data of piracy suspects, Mr Kennard said that this was an unavoidable trend.

"To some extent, it's becoming self enforcing in the sense that major wireless carriers are finding it really challenging now to keep up with the demand in data usage and one way to do so is to identify 'bandwidth hogs' - some of them are pirates, but many of them are legitimate gamers."

According to the final Acta text, governments are allowed to "order an online service provider to disclose ... information sufficient to identify a subscriber whose account was allegedly used for infringement ... of trademark or copyright or related rights infringement."

The text further stresses the need for these procedures to be implemented in accordance to national law and the preserving of fundamental rights, fair process and privacy.

But a recent study by legal informatics experts from the German university in Hannover highlights a series of problems in complying with EU law and advise MEPs to strike down Acta, unless changes are made.

The issues highlighted in the study have been picked up by four MEPs who on Tuesday sent written questions to the EU commission about it, asking if it is aware of the negative legal opinion and how it intends to address it.

Two particular points are highlighted by the MEPs - the "different formulations" on the level of damages for intellectual property infringements and the how the new measures, which target not only counterfeit products, but also copyright and trademark infringements will not impede the "legal movement of medicines."

If the European Parliament strikes down the agreement, talks would have to start again from scratch. Pressure from the US side is therefore expected to increase in the coming months, in the run-up to the vote, as Washington wants to avoid another "Swift fiasco".

Last year, MEPs struck down an interim agreement allowing US officials to have access to EU banking data when searching for terrorism leads. The deal was then hastily re-negotiated and more provisions were added to please the European Parliament, although bulk data - the core of the matter - still is being transferred to the US.

In addition to the legal issues, Acta has also outraged EU parlamentarians as negotiations from the US side seemed to be too close to the position of Hollywood producers and big American record labels.

Diplomatic cables published by WikiLeaks last month also reveal the pressure put by the US government on its European counterparts, particularly in Spain, to adopt draconian copyright enforcement laws.

Throughout 2008, the US embassy in Madrid appears to have worked with rights-holders to pressure the newly-elected Spanish government. In September 2008, in a meeting between US embassy staff and a Spanish government official, Spain was "urged to take strong action against internet piracy."

The embassy cables refer to the EU Telecoms Package in the context of copyright, noting approvingly that it "will not require a court order for cut-off of Internet access." The cables also expresses approval for France's three-strikes law and for similar measures adopted in the UK.

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