Secret Antipirate Treaty Sneaking Up on Us

Wikileaks has published a story about an international antipiracy agreement being negotiated in secret. The process aimed at establishing this treaty, Anti-Counterfeit Trade Agreement(ACTA) has according to Wikileaks been initiated by the US, the EU, Japan and Switzerland. Instead of going through the conventional organizations for trade and Immaterial Property Rights, a number of countries have chosen bilateral negotiations. At a later stage, more countries will be expected to sign the agreement. Selected copyright lobbyists have been allowed to see the discussion paper that the negotiations are based on. Apart from that, the document has been kept secret until it ended up on Wikileaks.

Several of the proposals in the discussion paper can be recognized from EU’s 2004 Intellectual Property Rights Enforcement Directive(IPRED) and from IPRED2, which hasn’t been approved. For instance, countries signing the treaty will be forced to introduce sanction that deter copyright infringement. According to Wikileaks, there is also a paragraph aimed at criminalizing commercial and non-commercial tools that can be used for copyright infringement. If this is true, it means that the EU commission through a trade agreement are trying to tie up member states to regulation that they have been unable to push through EU’s internal legislation process. This is the equivalent of a national government signing a treaty that commits the country to laws that the parliament rejects.

Another paragraph suggested in the discussion paper would force ISP’s to hand out customer information to rights holders. Today, it’s up to each EU country whether to use that legal tool. The question is whether the implementation can continue to be voluntary if the EU is tied up through ACTA. The Canadian newspaper Calgary Herald writes that ACTA can require ISP’s to disclose customer data even without a court order.

In 2007, the EU commission announced that they sought a mandate to participate in the ACTA negotiations. Now they have that mandate, from a meeting with the European agriculture ministers. The issue was never discussed at the meeting, and the ministers were most likely not aware of the decision they made. The EU position was in reality determined at an earlier meeting with the 133-Committee, a committee without political representation whose actions cannot be examined by the public.

With decentralized file sharing networks and with new ways of sharing files outside the internet, for example via bluetooth devices, the antipirates cannot stop the file sharing as such. Instead they try to attack the possession of copyrighted material by allowing body searches and by examining citizens’ electronic equipment. This 1984 government has probably been an unthinkable scenario to most people, but maybe that where we’re heading.