Debunking the European Commission's '10 myths about ACTA'

Glyn Moody takes us through the EC's document '10 myths about ACTA' and shows us that it has some myths of its own

Image: By tiseb (CC BY 2.0)

It's a sign of the European Commission's increasing desperation over ACTA that it has been forced to send out a document entitled "10 Myths About ACTA" that purports to debunk misinformation that is being put around. Unsurprisingly, the EC's document is itself full of misinformation. Here are just a few of the more outrageous examples.

1. ACTA will limit the access to the internet and will censor websites.

Read the text of the ACTA Agreement - there is no single paragraph in ACTA that substantiates this claim. ACTA is about tackling large scale illegal activity, often pursued by criminal organisations. It is not about how people use the internet in their everyday lives. Internet users can continue to share non-pirated material and information on the web. ACTA will not limit people's rights on the internet nor will it shut down websites, unlike the proposals discussed in the US (SOPA and PIPA).

There are some convenient half-truths here. Its supporters may claim that ACTA is about tackling large-scale illegal activity but nowhere in the document is there mentioned any minimum level for its operation. That is, potentially, it can apply to the actions of a single person, perhaps even sharing a single file, depending upon the circumstances. The problem is, ACTA's framing is so vague that it's not clear exactly who might be caught by its terms. Whatever the Commission may say now, it's how the text is interpreted later that matters.

After all, if the Commission had really wanted only to tackle "large-scale illegal activity", it would have added a minimum level to exclude the risk that ordinary Internet users would be affected. The refusal to add that minimum level to the treaty – something that would have been easy to do - can only mean that the Commission does indeed want the option of applying ACTA's rules to ordinary citizens, and that its claims to the contrary are simply whitewashing.

The next half-truth is: "Internet users can continue to share non-pirated material and information on the web". But what exactly is "non-pirated material"? Who decides? Because copyright has become such a complex set of laws that it is rarely clear – even to copyright lawyers – what exactly is or isn't "pirated": often the courts have to decide whether something is covered by "fair dealing/fair use", for example. So how can ordinary citizens possibly know in every case whether what they are sharing is "pirated"?

In particular, there is the situation that the term of copyright varies by country, and what may be in the public domain in one, is still in copyright in another. So what happens when someone in a country where some creation is in the public domain shares it with someone in a country where it isn't? The continuing injustice of the O'Dwyer case shows us that the US tries to applies its laws everywhere in the world: so does that mean its copyright laws apply in Europe?

Finally, while it is true that ACTA will not "shut down websites" directly, there is another clause that is even worse (Article 10):

Judicial authorities have the authority to order that materials and implements, the predominant use of which has been in the manufacture or creation of such infringing goods, be, without undue delay and without compensation of any sort, destroyed or disposed of.

Now, by definition, a Web site "creates" infringing copies when it sends or streams them to users; so lawyers could – and almost certainly will, knowing lawyers – argue that ACTA provides for the destruction and disposal of any computers whose "predominant use" is copyright infringement. So, no simple censorship, certainly, just the seizure and physical destruction of computers (assuming they are in one of the ACTA signatories), and probably the domain name too.

Not only that, but another section (Article 12) allows for "materials and implements" to be seized without informing the party affected, and even without any guarantee that people can defend themselves afterwards – so much for due process and justice.

3. ACTA is a secret agreement. Negotiations were not transparent and conducted "behind closed doors". The European Parliament was not fully informed, stakeholders were not consulted.

The text of ACTA is publicly available to all. The negotiations for ACTA were not different from negotiations on any other international agreement. It is a fact that such agreements are not negotiated in public, but with the Lisbon Agreement and the revised Framework Agreement there are clear rules on how the European Parliament (EP) should be informed of such trade negotiations. And these have been scrupulously followed. Trade Commissioner Karel De Gucht has participated in three plenary debates, replied to several dozens of written and oral questions, as well to two Resolutions and one Declaration of the EP, whilst Commission services have provided several dedicated briefings to Members of the European Parliament (MEPs) during the negotiations. Trade Commissioner Karel De Gucht has participated in three plenary debates, replied to several dozens of written and oral questions, as well to two Resolutions and one Declaration of the EP, whilst Commission services have provided several dedicated briefings to Members of the European Parliament (MEPs) during the negotiations. Likewise, the public was informed since the launch of the negotiations about the objectives and general thrust of the negotiations. The Commission released summary reports after every negotiation round and the negotiating text since April 2010. It organised press briefings and four stakeholder conferences on ACTA, one of them even only a few days before the first negotiating round.

This is extraordinarily duplicitous. The text of ACTA may be available to everyone *now*, but that is after the negotiations have been concluded – in other words, as a fait accompli. Even though the ACTA discussions began in 2006, the first formal draft that was officially released was only in 2010. The only reason people knew what was in ACTA was thanks to a document posted in Wikileaks in 2008: in other words, if the ACTA negotiators had got their way, ACTA would have been negotiated behind closed doors for four years before the public was allowed to see anything (and had there not been the Wikileaks leak, it's possible that even the draft would not have been released.)

The Commission claims "the public was informed since the launch of the negotiations about the objectives and general thrust of the negotiations": but what matters, of course, are the details, not the "general thrust". A few press briefings and stakeholder conferences are no substitute for actually allowing the public to give some – any – input to the ACTA process. But in the many years of negotiations, there was no possibility whatsoever to do that.

And yet even though the public was denied any opportunity to comment on a treaty that would have important implications for their lives, certain privileged groups were not just given access but consulted on their views, as Wikipedia explains:

Apart from the participating governments, an advisory committee of large US-based multinational corporations was consulted on the content of the draft treaty, including the Pharmaceutical Research and Manufacturers of America and the International Intellectual Property Alliance (which includes the Business Software Alliance, Motion Picture Association of America, and Recording Industry Association of America). A 2009 Freedom of Information request showed that the following companies also received copies of the draft under a nondisclosure agreement: Google, eBay, Intel, Dell, News Corporation, Sony Pictures, Time Warner, and Verizon.

Given the fact that major US corporations that stand to benefit directly from ACTA's disproportionate enforcement terms were allowed to shape its details from early on, while the 300 million European citizens who will be subject to those same terms had not a single formal opportunity even to express their views, the Commission's attempt to suggest that this was not a secret treaty, and that the public was consulted, is risible and insulting.

6. ACTA favours IP right-holders. ACTA eliminates safeguards and exceptions existing under international law.

Quite to the contrary, ACTA is drafted in very flexible terms and contains the necessary safeguards to allow the participating countries to strike an appropriate balance between all rights and interests involved, in line with their economic, political and social objectives, as well as with their legal traditions. All safeguards and exceptions under EU law or under the TRIPs Agreement remain fully preserved.

Notice how the "myth" has two components, but that the European Commission only answers one of them. The whole treaty is predicated on the assumption that more enforcement is good: there is no consideration of the collateral damage it might inflict, for example on members of the public. That, of course, is because the public was never allowed to present its views; inevitably, the resulting document is incredibly one sided and biased in favour of the copyright industries.

This can be most clearly seen in Article 9, which spells out the damages for infringement (my emphasis added):

1. In determining the amount of damages for infringement of intellectual property rights, a Party’s judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

2. At least in cases of copyright or related rights infringement and trademark counterfeiting, each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority to order the infringer to pay the right holder the infringer’s profits that are attributable to the infringement. A Party may presume those profits to be the amount of damages referred to in paragraph 1.

3. At least with respect to infringement of copyright or related rights protecting works, phonograms, and performances, and in cases of trademark counterfeiting, each Party shall also establish or maintain a system that provides for one or more of the following:

(a) pre-established damages

(b) presumptions for determining the amount of damages sufficient to compensate the right holder for the harm caused by the infringement; or

(c) at least for copyright, additional damages.

Consider, now, how this might apply to sharing a few mp3s online. According to ACTA, the copyright holders can demand damages equal to the "lost profits" from those mp3s. And if you want to know how the recording industry calculates those, ask Jammie Thomas-Rasset, who was fined $1,920,000 for sharing 24 songs in the US. When that was later reduced to $54,000, the recording industries demanded a retrial because they felt it was far too low.

ACTA essentially validates this kind of deranged calculus, and permits copyright companies to claim for completely imaginary losses "to compensate the right holder for the harm caused by the infringement", even though it is impossible to quantify that "harm" in any sensible way when you're dealing with digital file sharing. Indeed, arguably there is no harm, since file sharing can actually *boost* sales – just ask Paul Coelho; but ACTA's tunnel vision naturally cannot contemplate such a possibility.

Given these utterly disproportionate figures, it is extraordinary how the members of the European Commission can claim with any seriousness that ACTA does not "favour" rights-holders. Perhaps they imagine everyone earns the same as they do – 240,000 Euros a year - and can easily find a few million Euros down the back of the sofa if they need to....

8. ACTA leads to "harmonisation through the backdoor". A study ordered by the European Parliament's committee for International Trade (INTA) to academics says that ACTA will require changes to EU enforcement legislation and/or to national laws.

ACTA provisions are compatible with existing EU law. ACTA will not require any revision or adaptation of EU law and will not require any Member States to review the measures or instruments by which they implement relevant EU law. ACTA is also in line with international law, in particular with the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The INTA study does not show evidence of any concrete situation where ACTA would contradict, repeal or require the modification of a single provision existing in EU legislation. This has been confirmed in very clear terms by the two above mentioned Opinions of the Legal Service of the European Parliament.

If ACTA is compatible with existing EU law – and that remains unclear, despite the Commission's assertions to the contrary – that's only so because the whole treaty is so vaguely worded. It is full of options – clauses that signatories "may" implement in certain ways.

But this is the central trick of ACTA: it is not that the treaty itself imposes new laws on participants *now* - the studied vagueness makes that unnecessary. What ACTA does is to create a framework whose assumptions are that laws will be passed in the future to comply with the optional, more stringent parts. In other words, ACTA is not so much about today's legal landscape, but about tomorrow's. It will allow politicians to say: "well, we really have to implement these harsher enforcement laws because it's in ACTA, and all of our partners have done so, and it would look bad if we didn't follow suit."

In fact, European commissioners aren't even waiting for ACTA to be ratified before moving down this path: with the “Proposal for a Revision of the Directive of Intellectual Property Rights” they are already planing to bring in harsher copyright enforcement of precisely the kind that ACTA tries to establish as a benchmark.

In other words, it's the usual copyright ratchet, whereby a country's copyright maximalism in one area is used as an excuse to "harmonise" everyone else's. That's precisely what has happened with copyright term, for example, where the varying terms for different kinds of creation – text, music, sound recordings – have gradually been extended around the world in order to bring about "harmonisation" (isn't it strange that there's never harmonisation *downwards*, and that it's always in favour of the copyright industries and to the detriment of the public?) ACTA seeks to use the same trick to export the worst excesses of copyright enforcement first to all signatories, and later around the world through further treaties, like the Trans-Pacific Partnership.

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