Concept version of ACTA made public

Yesterday, the negotiating partners have published the concept text for ACTA. The proposal deals, besides counterfeit goods and medicines, with online piracy. But, as the European Commission already revealed, the proposed text is less adamant about terminating the internet connection of file sharers as was widely feared.

Instead of the controversial footnote that would require countries to adopt a three strikes policy, the concept treaty provides this action as a possibility to its signatories, rather than as an obligation. According to Ars Technica, that provides an elaborate comment on the treaty and its predecessors, this option is mainly targeted at the European context, where policies and attitudes towards downloading without the consent of rights holders varies strongly. France’s and the UK’s respective governments, for example, are quite active in wishing to stem file sharing. Countries such as Spain, on the other hand, treat the issue much differently.

The proposal explicitly states that governments cannot oblige ISPs to filter their traffic for protected content and neither to actively track down file-sharers. According to the ACTA concept, ISPs are in principle not responsible for their customers’ file sharing behaviour, the so-called ‘safe harbour’ principle. ISPs are expected, though, to be "adopting and reasonably implementing a policy to address the unauthorized storage or transmission of materials protected by copyright”. This clause strongly resembles an article from the US Digital Millennium Copyright Act.

In combating online piracy, ACTA does provide rights holders with the right to file for the identity of alleged file sharers with ISPs. Furthermore, the text urges rights holders to approach ISPs in order to jointly work out solutions. This article is still under negotiation as the participating countries are not fully agreed yet.

ACTA requires countries to make file-sharing on a commercial scale a criminal offence. Negotiations are still under way to establish what exactly a commercial scale entails. The provisional text does state that a direct or indirect commercial gain needs not necessarily be established.

22 April 2010