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EU promises no law change as full Acta text released

The near-final text of the Anti-Counterfeiting Trade Agreement has been published, and EU officials say it will not require any changes to pan-European law
Written by David Meyer, Contributor on

The Anti-Counterfeiting Trade Agreement will not lead to any changes in European law, EU officials said as the near-final text of the treaty was released on Wednesday.

The text of the international intellectual-property enforcement treaty was made public after the final round of negotiations, which took place in Japan last week. Although a small number of words and phrases — highlighted in the released text — remain contentious between negotiators, these will be resolved through email exchanges rather than further formal rounds.

"We're saving taxpayers money on flights," an EU official close to the Anti-Counterfeiting Trade Agreement (Acta) negotiations explained. One such contentious phrase involves the provision of criminal penalties for people who make video copies of films in cinemas. The released text says signatory countries "may" impose such penalties, but some parties — understood by ZDNet UK to be the US — are keen to replace that word with "shall".

Acta is ostensibly a trade treaty, which is why — to the ire of EU parliamentarians, ISPs and other interested parties — its negotiations have been conducted entirely behind closed doors. However, despite its formal definition, it is almost entirely concerned with civil and criminal enforcement relating to copyright and trademark infringement.

It has been the subject of many leaks and one official draft publication. The publication on Wednesday is the first to provide a consolidated text, free of square-bracketed sections that represent the places where various negotiating parties preferred alternative words.

The text shows several major differences to earlier drafts. For example, a section that previously placed a ban on all tools that could be used for copyright infringement or digital rights management (DRM) circumvention now has a narrower scope, focusing only on tools that are primarily designed for such purposes.

"We have made sure that the prohibited tools will only be those that will be used in the context of an intellectual-property infringement," one of the EU officials said. "The same tool can be legal or illegal, depending on the purpose. Legal P2P [peer-to-peer] remains legal, illegal P2P remains illegal."

Crucially, there is no obligation on signatories to impose three-strikes rules on their citizens and ISPs. Such rules force ISPs to police their networks for copyright infringement and potentially disconnect repeat infringers. Signatories may impose such rules if they wish, as is the case with France's Hadopi laws and the UK's Digital Economy Act, or they may choose not to do so.

"Acta does not prevent Europe from keeping its diverse typology of [enforcement laws]," an EU official noted.

The final text still has to be approved by signatories' individual political structures, in the EU's case the Council, Parliament and member states.

"We are very confident that, from an objective point of view, there is nothing in this text which goes beyond the EU [communal law] and which will force the EU Parliament to legislate, and equally there is nothing which should prohibit the Parliament from agreeing to the text," an EU official said.

Michael Geist, a Canadian law professor and notable observer of the Acta process, wrote in a blog post on Wednesday that the new text represented "Acta Ultra-Lite", and pointed to a failure of some parties to push through more restrictive terms.

Referring specifically to the provisions on DRM circumvention tools, Geist wrote: "The language is such that you can picture the US delegation slowly caving on its demands in order to achieve consensus. For example, in the last draft the US wanted to include circumvention of access controls... This language is now gone."

Despite the assurances of the EU officials, Jérémie Zimmermann, the co-founder of the French digital rights group La Quadrature du Net, told ZDNet UK that the final text was "still very bad".

"Whatever happens, it's still circumvention of the democratic process," Zimmermann said, adding that EU law would have to change to reflect Acta's insistence on criminal liability for aiding and abetting commercial-scale copyright infringement.

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