European Digital Rights (EDRI) sent a briefing document to the Parliament, and Mr. Kamall relayed an item raised by the organisation to the European Commission by written question. The answer of De Gucht is remarkable on multiple levels. But there is more to it. The footnote issue from the leaked documents was openly discussed by Commission staff during hearings, in fact Luc Devigne argued about it with Canadian Law Professor Michael Geist. The key caveat below is the word mandatory. Again the Commission and Council cover up the negotiations as a result of confidentiality. Here is another video from the stakeholder hearing where Margot from XS4all did a bunny test for the snake on 3strikes.
Parliamentary questions 7 March 2012 P-001085/2012
Answer given by Mr De Gucht on behalf of the Commission
The final text of the Anti-Counterfeiting Trade Agreement (ACTA) is the result of a negotiating process where various proposals made by all parties were discussed, some of which were rejected. The Commission confirms its previous statement that no party proposed rules such as mandatory ‘three strikes’ measures. It is also correct that one party, early in the negotiations, proposed to discuss the possibility to implement policies to address the unauthorised storage of protected materials. In its proposal, this party made reference to systems of self-regulation by Internet service providers which may include in their contractual conditions of use policies allowing for the termination of contract for users repeatedly infringing Intellectual Property (IP) rights.
This proposal was flatly rejected by the EU because it did not comply with the E-Commerce Directive(1). It was also opposed by most of the other negotiating parties. The fact that this proposal was never accepted and therefore never included in the agreement is an unambiguous signal that it is not the intention of the parties for the agreement to address the unauthorised storage of protected materials.
It was intentionally decided by the ACTA parties not to create a dispute settlement mechanism which could impose a particular interpretation of ACTA against the views of one of its Parties. The final text of ACTA only refers to the possibility for stakeholders to cooperate between themselves. This cooperation is strictly limited by the rules on fundamental principles. The EU will continue to implement such a provision in line with the existing legislation which foresees, for instance, the creation of dialogues between stakeholders, such as those between Internet actors under the framework of the Enforcement Directive(2).
(1) Directive 2000/31/EC of Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’), OJ L 178, 17.7.2000.
(2) Directive 2004/48/EC of Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, OJ L 157, 30.4.2004.
Parliamentary questions 3 February 2012 P-001085/2012
Question for written answer to the Commission Rule 117
Syed Kamall (ECR)
Anti-Counterfeiting Trade Agreement
I have been contacted by a civil society organisation which tells me that according to the Commission’s summary of its ‘Civil Society Meeting’ on 25 March 2011, ‘many rumours have circulated on “three strikes” measures and other measures restricting the access to Internet. It is important to clarify that no such rules were ever proposed by any of the parties involved in the ACTA negotiations’(1).
The civil society organisation claims that this assertion from the Commission directly contradicts an alleged leak of the digital chapter of ACTA (originally published in March 2010 and reproduced in a European Parliament briefing document(2)), which contains a footnote which proposed disconnection of (presumably ‘alleged’) repeat infringers as ‘an example of such a policy’. The full text of the footnote was:
‘[a]n example of such a policy is providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider’s systems or network of repeat infringers’.
1. Can the Commission either confirm or deny the existence of that footnote in the preparatory works of ACTA?
2. If it confirms the existence of that footnote, can the Commission point to subsequent preparatory work that confirms that disconnection of end users is not an example of the type or severity of punishment that should be imposed in the proposed private law enforcement foreseen by ACTA?
(2) European Parliament briefing document: http://www.edri.org/files/acta_disconnection.pdf