News From ACTA Negotiations

In a time where not only various groups of the society at large are clashing over the desired role and shape of Intellectual Property law but where also even different commercial corporations running on divergent business models feel that there is a lot of conflict in the air, proponents of the old school are attempting to fixate as much as possible of the established 20^th century world of copyright, patents and trade marks in order to bring such subject-matter out of reach of any reformers the 21^th century might develop.

Hence, a lot of stuff in the recent text is not new for the EU; take e.g. the Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (IPRED-1) .

However, ACTA clearly goes beyond that. The European Union has failed so far in agreeing on amendments concerning criminal law for Intellectual Property enforcement. A Draft directive on criminal measures aimed at ensuring the enforcement of intellectual property rights has been proposed to supplement said Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights (Civil enforcement) but is still not enacted yet. ACTA not only anticipates subject-matter of the Draft directive mentioned above but also intends to put a tight regulatory framework on the Internet.

As explained earlier, a more natural environment for negotiating a Trade Agreement would have been the World Trade Organisation (WTO) or the World Intellectual Property Organisation (WIPO), the latter being nothing less than a sub-organisation of the united Nations (UN). But stakeholders from old school in the United States (and maybe from elsewhere) apparently had no confidence in that those organisations would provide sufficient support for their political desires. Hence, an attempt was started to form a coalition of the willing to erect a third institutional structure in addition to WTO and WIPO, namely an ACTA Oversight or Steering Committee.

Concerning the EU, ACTA is essentially a project under control of the EU Council, i.e. the national Governments of the Member States of the EU. On April 14, 2008, the EU Commission got a mandate from EU Council to conduct the negotiations on behalf of the EU, see Document 7926/08 conveying a press release concerning the 2862^nd meeting of the EU Council in the Agriculture and Fisheries configuration. Backed by this mandate, the EU Commission is now sitting at the ACTA conference table. Once the negotiations are finished, the EU Council will have their say again. If the EU Council approves the result, it will be up to the European Parliament to show thumbs up or thumbs down. In case the EU Council accepting the result of the negotiations conducted by the EU Commission, the political pressure on the MEPs to accept the Agreement surely will be enormous.

As we recently have seen with regard to the SWIFT agreement, the Parliament most probably will be threatened by prospects of a significant deterioration of U.S. - Europe relations in case of a rejection of ACTA.

In any case it should be understood that the European Parliament will not be directly involved in the ACTA negotiations. At the end thereof, they will once be called to vote for approval, but they will have no more involvement than that. By the way, this is the same procedure as will be followed in the case of the planned EU Patents Court.

Rather worrying is the fact that ACTA not only attempts to regulate various layers of Intellectual Property enforcement but has also expressly represents a sectoral approach concerning Special Measures Related to Technological Enforcement of Intellectual Property in the Digital Environment. In this Section 4 there is a considerable potential for much more draconian measures to regulate communication on the Internet than in the current acquis communautaire of the European Union comprising provisions for establishing the mere conduit privilege. According to Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000. An Internet service provider can benefit from the exemptions from liability for 'mere conduit' and for 'caching' when he is in no way involved with the information transmitted; this requires among other things that he does not modify the information that he transmits; this requirement does not cover manipulations of a technical nature which take place in the course of the transmission as they do not alter the integrity of the information contained in the transmission. (Nevertheless, a service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of 'mere conduit' or 'caching' and as a result cannot benefit from the liability exemptions established for these activities.) Despite some grave problems when applying this provision in case law, the 'mere conduit' privilege is a cornerstone of EU acquis communautaire fostering the development of the Internet throughout Europe.

With vigorous energy, the proponents of ACTA appear to go the whole hog: Perhaps they hope to be able to preserve the good old times of the status quo ante of the 20^th century with regard to Intellectual Property, where no nasty Internet threatened long-established business models. But in reality it is extremely risky to try to can portions of a status quo ante when the wall is covered all over with signs indicating that something has to change and surely will change. It is like playing en banc. In particular in the field of copyright law it becomes more and more visible that pure enforcement, may it be as draconian as right holders dream of, will not be able to save outdated business models. Customers simply won't allow to be coerced to pay for goods and or services which they feel they don't need; take traditional newspapers as an example. And, if ACTA should ever become law, this might severely backfire if, post festum, general public feels cheated into a rigid regime of IP enforcement which is perceived as inadequate for emerging business models in the 21^st century. In a worst case scenario, such doing one day might give IP abolitionists a decisive boost.

And, any inclusion of patent rights into ad-hoc enforcement like border measures does not make more sense in ACTA as it did not in IPRED-2.