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Danger of international accord on repressive policies in final ACTA talks, says RSF

(RSF/IFEX) - As the 11th round of negotiations for an Anti-Counterfeiting Trade Agreement (ACTA) gets under way in Tokyo, Reporters Without Borders reiterates its opposition to the way these talks are being held behind closed doors without democratic consultation and to the potentially repressive positions being taken by the countries involved. The negotiators aim to conclude the accord or at least finalize its main points, but the latest draft is unacceptable and must be changed if not abandoned altogether.

According to the latest leaks, on 25 August 2010, the wording of the section on the Internet entitled "Special Measures Related to Technological Enforcement of Intellectual Property in the Digital Environment" has been softened but it still gives governments a lot of scope to introduce repressive provisions including filtering and a "graduated response" leading to the disconnection of illegal downloaders.

The section on "Institutional Arrangements" envisages the creation of an "ACTA committee" that could have the power to made subsequent changes to the accord, called "amendments," without any form of democratic control.

Civil sanctions

In the ACTA's latest version, Internet service providers and companies that provide website hosting services are no longer required to take repressive measures against illegal downloaders and civil sanctions have instead been included in the "General Obligations with Respect to Enforcement."

But ISPs and other technical intermediaries are still held responsible for content and must now cooperate and reach contractual agreements with copyright holders and, if required, provide them with evidence of copyright violations. Reporters Without Borders fears that legal and business pressure will force them to introduce Internet filtering in order to avoid paying heavy damages.

Under this new approach, technical intermediaries would be forced to surrender the personal data of clients to copyright holders. This could have disastrous consequences for the privacy of Internet users, especially if the ACTA is extended to countries that gather personal information about dissidents in order to silence them.

Criminal sanctions

The ACTA recommends the use of criminal proceedings for trademark counterfeiting and certain kinds of illegal downloading. Article 2.14.4 on "Criminal Offences" also provides for such proceedings against any intermediary who is deemed to have assisted such activity. Reporters Without Borders thinks this could foster an oppressive climate for all Internet users.

The dangerous concept of "commercial scale" is introduced to determine who should or should not be punished in article 2.14.1, which says: "Each party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale." The term "scale" is vague and could easily be exploited to extend the provision's scope. Commercial intent should be the only criteria.

Responsibility of technical intermediaries – crucial issue for Internet's future

The responsibility of technical intermediaries is an issue that does not concern only the ACTA. In a ruling criticised at the time by Reporters Without Borders, an Italian court imposed suspended prison sentences on three Google executives last February after finding them guilty of violating a handicapped teenager's privacy because a video of him was posted on Google Video in 2006.

A Madrid commercial court took the contrary view in a decision issued on appeal on 24 September. The court recognised that the posting of Telecinco video footage on YouTube was a violation of the TV station's copyright but ruled that, as a hosting service, YouTube was not responsible.
YouTube only had an obligation to cooperate with the copyright holders by withdrawing the material once the violation had been pointed out, the court ruled.

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