The final text of the international Anti-Counterfeiting Trade Agreement – described by the participants as a “plurilateral treaty” – was published in early December. Its development provided sparks in the European Parliament. It was originally conceived by a small group of developed nations and negotiated in secret outside the normal channels of WIPO and the WTO. The aim was to establish agreement on a higher international standard for IPR enforcement than exists under TRIPS, particularly for the online environment. The European Commission joined the discussions early in the process. Leaks from the talks indicated that the group was considering proposals for enforcement in the online environment which included the controversial “three-strikes” solution, and which appeared likely to over-reach existing EU laws in a number of respects. The lack of transparency infuriated the Parliament, which eventually went so far as to threaten proceedings in the Court of Justice unless the text was made public. In consequence, the text under discussion was finally published last March.
Apart from the European Union and its Member States (represented by the Commission and the Belgian Presidency) participants included the U.S., Australia, Canada, Japan, Korea, Mexico, Morocco, New Zealand, Singapore and Switzerland.
DG Trade describes the agreement as including “state-of-the-art provisions on the enforcement of intellectual property rights, including provisions on civil, criminal, border and digital environment enforcement measures, robust cooperation mechanisms among ACTA Parties to assist in their enforcement efforts, and establishment of best practices for effective IPR enforcement.”
Two respects in which the text represents an enhancement of existing EU norms concern criminal enforcement of IPR and enforcement in the digital environment. Perhaps however the most interesting provision from an Irish perspective is the article concerning the obligations of the ISP in relation to online copyright infringement. Here it is:
“A Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of trademark or copyright or related rights infringement, and where such information is being sought for the purpose of protecting or enforcing those rights. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.”
The ultimate provision is tame by comparison with the texts which were explored in the negtiations. The article is not mandatory and is confined to the possibility of disclosure of the identity of the ISP subscriber in circumstances where the right holder has filed a “legally sufficient claim” for infringement. Implementation must also be consistent with the State’s other laws and fundamental principles, including privacy.
The Parliament stayed in close contact with developments leading to the publication of the final text. Its approval was bounded by a serious list of qualifications, for example:
“Whereas, as the Commission has repeatedly stated, ACTA is concerned solely with enforcement measures and does not include provisions modifying the substantive intellectual property rights (IPR) law of the EU or the other ACTA parties, but rather establishes, for the first time, a comprehensive international framework to assist the parties in their efforts to combat IPR infringements effectively, and it does not therefore imply any change to the acquis communautaire.”
The Commission has embarked on a review of the e-Commerce Directive and this will inevitably involve the question of ISP liability. If the ACTA provision represents current thinking on the part of the Commission, then the ISPs have little to fear that the status quo will undergo any radical change.
