Acta leak shows EU resistance to US proposals

The US has proposed that repeat copyright infringers around the world be disconnected, and wants to create new criminal offences for breaking DRM
Written by David Meyer, Contributor

The European Union has been resisting US pressure to create a global system of internet disconnection for those who repeatedly infringe copyright over the web.

The EU's resistance is apparent in the most substantial leak yet to emerge from the closed negotiations surrounding Acta (the Anti-Counterfeiting Trade Agreement), a global trade treaty that will update copyright enforcement around the world.

The leak, published online by the French digital rights group La Quadrature Du Net on Tuesday, is a consolidated text of the US/Japanese Acta proposal, and includes comments and edits from other parties such as the EU, Switzerland, Australia and New Zealand.

The leaked document also shows that the US wants to create criminal offences for breaking digital rights management (DRM) on copyrighted content, for creating or distributing DRM-breaking tools, and for distributing content that has had its DRM broken.

The PDF released by La Quadrature Du Net appears to be a scan of an 'EU and member states' copy of Acta draft. On Wednesday, ZDNet UK contacted the office of trade commissioner Karel De Gucht to verify the authenticity of the leaked document, but was told by De Gucht's spokesman, John Clancy, that "this is not an official Commission document, therefore it is impossible for [Clancy] to say whether it is genuine or not".

The leaked document is dated 18 January, which pre-dates a round of negotiations that took place later that month in Guadalajara, Mexico. The next round is scheduled for mid-April in Wellington, New Zealand.

In February, Clancy told ZDNet UK that the EU would not accept any agreement that would force countries to disconnect their citizens from the web, as the EU wants such matters to be up to each member state.

Acta is supposed to be about copyright and trademark infringement on a commercial scale. However, parts of the leaked US/Japan proposal, particularly Article 2.17, Section 4 — entitled Special Measures Related To Technological Enforcement Means and the Internet — bear no reference to commercial scale.

In this section, the US proposes that each country's civil and criminal enforcement include "remedies to prevent infringement and remedies which constitute a deterrent to further infringement". The EU has then added in: "Those measures, procedures and remedies shall also be fair and proportionate."

According to the leaked text, the US proposes that ISPs should have limited liability for the unauthorised storage or transmission of copyrighted material over their networks, as long as they adopt policies such as "providing for the termination in appropriate circumstances of subscriptions and accounts on the service provider's system or network of repeat infringers".

The EU rejected this US proposal, pushing instead for account termination and the blocking of access to infringing material to remain within the control of each party's existing legal system.

The document also showed that the US is seeking criminal penalties for breaking the DRM on digital content, and for making or circulating any tool for breaking DRM — even for making or circulating a product "that has only a limited commercially significant purpose or use other than circumventing an effective technological measure".

The EU said it wanted exceptions and limitations made possible this section, in accordance with each party's existing legal system. The EU also said it wanted to strike out US-proposed references to criminal penalties for distributing content that has had its DRM stripped or altered.

Acta has come under considerable criticism from ISPs, rights groups and members of the European Parliament, among others, for the lack of transparency surrounding the treaty's negotiations. However, Clancy told ZDNet UK on Wednesday that commissioner De Gucht "has outlined to the public and members of the European Parliament his desire to see greater transparency", and will ask the other negotiating parties to agree to transparency in the Wellington round next month.

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