No Three-Strikes in ACTA

A consolidated text of the Anti-Counterfeiting Trade Agreement (ACTA) has been made public at last this week. Parts of the text in brackets indicate what has not been adopted yet by all Parties.

Article 1.4 about “Privacy and disclosure of information” merely indicates between brackets that a suitable provision ensuring that nothing in the Agreement detracts from national legislation regarding protection of personal privacy needs to be drafted.

Let’s move on to section 4 dedicated to “Special measures related to technological enforcement of Intellectual Property in the digital environment.” That was the part of ACTA I was the most anxious to read, to find out whether ACTA promotes a three-strikes law similar to the French HADOPI law, or the Digital Economy Bill, which was recently passed by the U.K. Parliament.

Article 2.18 deals with “Enforcement Procedures in the Digital Environment.” There are two Options of this article, Option 1 and Option 2 (this is still a draft after all.) For both Options, these measures, procedures and remedies should be “fair and proportionate.” (p.18)

Indeed, “some persons use the services of thirds parties, including online service providers” to engage in IP rights infringement. What are, if any, the responsibilities of the ISPs according to the ACTA?

In Option 1, there would be a Safe Harbor for ISPs (although only “in certain situations”, see note 52 page 19), provided that the ISP had not selected the infringing material nor had initiated the user’s infringing actions, article 2.18. 3. (a)(ii), and did not have actual knowledge of the infringement.

An ISP would also need to have a policy addressing the unauthorized storage or transmission of copyrighted materials. However, no Party may condition offering a Safe Harbor to an ISP by having the ISP monitor its services or “affirmatively seeking facts indicating that an infringing activity is occurring,” article 2.18. 3. (b) (i) (Page 21). Does that mean that the ISP would have no monitoring duties at all?

In Option 2, there would be also a Safe Harbor provided that the ISP had not selected the infringing material nor had initiated the user’s infringing actions, article 2.18. 3. (a) (ii), and only if the ISP would remove or disable access to the infringing material “expeditiously” upon learning about the infringement. This is very similar to the DMCA takedown notices.

Article 2.18. § 3 ter, Option 2, would enable intellectual property rights holders, who have given notice to an ISP that they have valid reasons to claim that some material posted by one of its subscriber infringes their rights, to obtain “expeditiously” from the ISP the identity of this subscriber.

No three-strikes in ACTA so far, but to be followed with care…