Behind closed doors the EU, US, Japan and other countries negotiate an Anti-Counterfeiting Trade Agreement (ACTA). A leaked discussion paper mentions types of provisions that could be included. According to the European Commissions website, a “path breaking” agreement is foreseen. For this reason the Commission likes to work outside the normal formal structures. Indeed, the leaked document contains unprecedented measures. We will analyse the Communitys competence to conclude ACTA and proportionality issues.
The Communitys efforts to fight piracy suffers from a fundamental misconception. It fails to make adequate distinctions between commercial piracy enterprises, legitimate/lawful activities undertaken by business competitors, or even the common activities of ordinary Europeans. As a result harsh measures aimed at commercial piracy enterprises also hurt business competitors and civilians. The types of provisions mentioned in the leaked ACTA document show the same misconception. It mentions criminal provisions against trademark counterfeiting and copyright piracy. Contrary to the TRIPS agreement, “wilfull” and “commercial scale” are not mentioned as conditions. Should non-wilful acts be crimes on a world scale?
In the section on criminal enforcement, the discussion paper broadens the definition of commercial scale so far it includes non-commercial acts. This is a serious threat to the freedom of speech, the internet and to privacy. A trade agreement that criminalises civilians on a world scale? Trade agreements are not meant for that. ACTA may create an unprecedented scope of secondary liability for Internet intermediaries, ICTs, software vendors and a range of legitimate business activities. The discussion paper mentions a dispute settlement committtee to solve implementation issues. Dedicated committees tend to quickly become a champion for its specialty. We have to fear a worst case scenario here.
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