Debate on Acta heats up

The government has finally reacted to concerns about Malta’s signing of a controversial trade agreement, insisting private citizens will not be affected.

If ISPs amend their terms and conditions as a result, who will be affected if not individuals?

It has also referred the agreement – that spans a range of intellectual property right issues and has sparked widespread consternation across online social networks – to Parliament’s European and Foreign Affairs Committee for further analysis.

Malta was one of 22 EU member states to sign the Anti-Counterfeit Trade Agreement last Thursday.

“This agreement does not impose any new legal obligations on individual citizens. All it does is place obligations on internet service providers to crack down on flagrant abusers of copyright laws,” Finance Minister Tonio Fenech stressed yesterday.

But Opposition IT spokesman Michael Farrugia disagreed. “This agreement’s vague wording threatens our right to privacy, freedom of expression and the right to a fair trial. If ISPs amend their terms and conditions as a result, who will be affected if not individuals? Private citizens lie at the end of the chain.”

Alternattiva Demokratika has also condemned the agreement, citing a study commissioned by the European Greens which found that the agreement violated fundamental rights and slammed it as being “unconstitutional”.

Mr Fenech was adamant that the government had been consistently transparent, noting it had presented the agreement to the Malta-EU Steering Committee members in July 2011 for any objections to be raised.

“No Meusac member, including the Labour Party, objected,” Mr Fenech said yesterday.

He, however, assuaged the public’s fears by saying the agreement still had some way to go before entering into law.

“If the agreement is passed by the European Parliament, it will need to be ratified by our Parliament before finally being signed into law by the Council of Ministers. We’re still at the beginning of that process.”

Acta has been controversial from the outset, with a more restrictive draft text watered down considerably following a public outcry.

Its vague wording has left a number of European institutions at loggerheads, with the Commission insisting the final agreement makes no changes to EU law – something disputed by others (see box).

The Commission has also insisted that concerns about the treaty’s impact on fundamental rights are groundless.

News of Malta’s signing of Acta quickly went viral across social media networks, with almost 2,500 people pledging to attend a protest against Acta scheduled for February 11.

According to Intellectual Property lawyer Jeanine Rizzo, the final agreement is not much different to already existing legislation.

“Practically everything mentioned already exists in EU or domestic law. The agreement is more related to enforcement of property rights,” Dr Rizzo said.

She pointed out that the open-ended language left leeway for individual countries’ interpretations. “The agreement contains several ‘may’ provisos – which are much better than ‘shall’ ones.”

One provision not accounted for in domestic law was that of “indirect” commercial benefit, Dr Rizzo noted.

Acta defines copyright infringers as anyone deriving direct or indirect commercial benefit from such infringement. Critics say this could lead to individuals being prosecuted. According to digital commentator and Students for a Free Culture member Neville Bezzina, Acta introduces a “significant risk” to increased cross-border enforcement on copyright matters, “including forcing ISPs to hand over personal data of their customers to right holders who make a claim”.

He noted the influence entertainment industry lobbyists had had on Acta, saying legislators were being sold a “fairy tale” about Acta curbing copyright infringement. “The truth is that there’s no proof Acta’s methods even work,” he said.

Yesterday, Labour’s Dr Farrugia also warned of the impact Acta could have on trade in generic medicines, saying the agreement failed to distinguish between generic and counterfeit pharmaceuticals and risked damaging trade in generic medicines.

Labour’s position, he said, was in line with that adopted by its MEPs in Brussels. PL MEPs had voted in favour of a November 2011 resolution expressing reservations about Acta and calling for significant amendments to the final text.

That resolution was narrowly defeated, with the European People’s Party, including PN MEPs Simon Busuttil and David Casa, voting against it. The two MEPs defended their vote yesterday, saying Acta was directed at large-scale criminals rather than individual users.

They insisted they would only support Acta if they were assured it did not “create undue restrictions for internet users.” An EP vote on the agreement is due in June.

Key analysts: What they’ve said

• European Data Protection Supervisor
In an opinion submitted in February 2010, the EDPS noted that while Acta’s intended objective was apprehending large-scale copyright infringers, “it cannot be excluded that activities of ordinary citizens might be captured under Acta”.

• European Ombudsman
In July 2010, the Ombudsman found that citizens had “a clear interest in being informed about Acta,” as it could lead to EU legislative change. However, it noted that although changes in legislation could result, the agreement itself did not directly lead to changes in legislation.

• EU Director-General for External Policies
A June 2011 assessment of Acta submitted to the European Parliament found that the agreement did not change civil liberties and privacy standards and it would have little impact on pharmaceutical stakeholders within the EU. It cautioned, however, that Acta “could pose a threat to trade in generic medicines”. It found that Acta’s rejection “would...entail little loss of benefits for EU citizens” but could result in “reduced prospects for stronger enforcement of IP rights in the future”.

• Opinion of European academics
A broad range of European academics submitted an opinion on Acta in January 2011. They found that, contrary to statements by the European Commission, “certain ACTA provisions are not entirely compatible with EU law and will directly or indirectly require additional action on the EU level”, and suggested withholding consent.

• European Commission
The Commission recommended ratifying Acta, saying that while some of its provisions may not be entirely similar to EU law, “this does not imply that Acta is incompatible with EU law.” Concerns about its vague language were unwarranted, as this was due to its intergovernmental nature. It noted that the number of counterfeit goods entering the EU tripled between 2005 and 2010, and that Acta would reinforce existing intellectual property protection rather than replace it.