The final version of the international Anti-counterfeiting Trade Agreement (ACTA) leaves the door open for countries to introduce the so-called three-strikes rule, which would see Internet users cut off if they download copyrighted material.
The controversial paragraph in the text allows that signatories to the agreement can order ISPs to disclose personal information about customers, although the text has been somewhat watered down from the original wording, which said that parties "shall" provide laws to demand information from ISPs. Sources close to the negotiations said that the current document can be seen as suggesting "what is considered best practice," which may be interpreted as encouraging countries to introduce such draconian measures.
Although the text released on Wednesday is described as the final version by the European Commission, around 10 phrases remain in dispute. It is hoped that these will be resolved without recourse to further formal negotiations.
With regard to enforcement procedures, the EU has expressed concern about the phrase "including the unlawful use of means of widespread distribution for infringing purposes." It appears that this would include peer-to-peer file sharing and could potential affect hundreds of thousands of Internet users.
The text also states that copyright holders must provide "sufficient claim of infringement," but does not specify what exactly this is.
The proposed agreement also calls for sanctions against any device or software that is marketed as a means of circumventing access controls such as encryption or scrambling that are designed to prevent copying. It also requires legal measures against knowingly using such technology.
ACTA is designed to protect intellectual property as defined in the World Trade Organisation’s 1994 TRIPS agreement (trade-related aspects of intellectual property rights). Many see the failure to update the definition of intellectual property as particularly worrying, given that much has change in the digital world since 1994 - there was no digital chapter at all in the TRIPS agreement.
The countries involved in the negotiations are Australia, Canada, Japan, South Korea, Morocco, New Zealand, Singapore, Switzerland, Mexico, the US and the EU nations. However, Mexico is considering pulling out and EU parliamentarians are also unhappy.
MEPs who have been angry about the secrecy surrounding the negotiations received the text at the same time as the media and will not be briefed on the negotiations until Thursday. Some parliamentarians have threatened to block the accord if they are not given sufficient time to consider the ramifications. Under the Lisbon Treaty the agreement must get the backing of Parliament.
The agreement as it stands would not require any change in EU legislation, but could have an impact on other parties whose laws on intellectual property are less defined. Of the outstanding disputed phrases, most have been queried by either the EU or the US. This dichotomy is representative of the negotiations as a whole with the US insisting on total secrecy and the EU Parliament calling for disclosure.
Once the debated phrases have been agreed upon ,each country must decide whether to adopt the final text. In the EU this mean the text must be approved by Parliament, the European Council and member states. Although negotiators are hailing the negotiations a success, there is still some way to go.