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Countries clash over ACTA, new leaks reveal

Outcry over the secret internet regulations is heating up in Europe

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Countries negotiating the secretive Anti-Counterfeiting Trade Agreement (ACTA) are clashing over a proposed three-strikes regulation, the legal basis for such a treaty and the lack of transparency in the process, according to newly leaked documents.

ACTA, which currently involves more than 11 countries, is to deal directly with the piracy on Internet through the construction of a legal framework that will strengthen the protection of the intellectual property rights in each country.

Australia, Canada, members of the European Union, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the United States are all reportedly involved in the ACTA negotiations. Recently, a leaked document revealed details of the enforcement system to be implemented in several of them, which includes making internet service providers(ISPs) liable for illegal downloads, as well as take down notices and a three strikes rule that will allow any ISP to disconnect the user from the Internet.

But the European Parliament is demanding answers from the European Commission about ACTA, while public outcry and criticism are driving many European countries to demand clarity about the secret talks, which have been ongoing for more than two years. But these EU-member nations are being frustrated by the European Commission.

This conflict is depicted in internal documents drafted by the Dutch Department of Economic Affairs, which is involved in the negotiations. Webwereld, a Dutch IDG affiliate, obtained the documents after earlier requests for such documents on the basis of the Freedom of Information Act were turned down. An English translation of the document is available at a Dutch website.

Annoyance about secrecy

The bulk of the text deals with the (lack of) information disclosure to the outside world by the ACTA negotiating countries. Continuous criticism about the secrecy is seen as a problem and a discussion on transparency has erupted as a consequence.

The UK wants full disclosure with support from, among others, the Netherlands, Poland, Estonia, Finland, Sweden and Austria. Germany and Denmark are opposed to that. It turns out that Singapore and South Korea also demand secrecy. Japan switched position and now favours full disclosure. The US is silent on the matter.

But the position of Washington becomes apparent when the report states that Italy and France fear retaliation. "The EC is prepared to go along in the direction of full disclosure of documents, but matters were dependent on the position of the new Commissioner and of course the wishes/concessions of other countries (the US did not seem convinced) had to be taken into consideration," the document states.

More secret negotiations

But most prominent is the stance of the European Commission. The leaked documents state: "The EC feared to establish a precedent for the free trade agreement currently under negotiation. It is not the intention that the position of the EU in those will be completely public. This could have great repercussions for the interests of the EU."

The role of the US in drafting ACTA is also supposed to remain secret. The section in the draft treaty on civil enforcement was written by the US. This is something critics have feared for some time, since leaked versions indicate strong similarities between parts of the treaty and the US law, the Digital Millennium Copyright Act.

ACTA negotiators aim to create international standards and enforcement for intellectual property rights, including measures to combat counterfeiting and Internet piracy. Some proposed provisions would push Internet providers to cooperate with antipiracy measures, possibly banning customers form the Internet for repeated illegal file sharing.

Questions and debate

The latest leaks have fuelled the aggravation in the European Parliament over an ACTA cover up. Liberals have already conveyed written questions to the European Commission for clarification.

Member of European Parliament Sophie In 't Veld has also requested a debate. "As things are progressing now the parliament can only say yes or no, but in order to make a decision we need to get hold of all the facts," she states. If that clarity isn't given, she expects a negative vote just as happened with the transfer on financial transactions (SWIFT) recently. "There the Commission was anything but transparent."

Also she is doubtful if the proceedings are legal at all. "We don't know the legal basis for ACTA and thus we don't know the valid democratic procedure," says In 't Veld. She is furthermore disturbed that the parliaments of EU-member nations are being kept in the dark. "They gave a mandate to the EC, but for what - it's anybody's guess."

If ACTA doesn't contain a section on criminal law, national parliaments of Europe have no role in accepting or denying the treaty. Since 1 December, 2009, the Lisbon Treaty handed those powers to the European Parliament. Says In 't Veld: "I wonder if they are aware of the consequences of their mandate. It amazes me that national parliaments show so little interest."

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