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Acta talks focus on three strikes, no appeal deal for software pirates

Negotiators are meeting this week in Seoul to discuss enforcement measures against copyright infringement as part of a global anti-counterfeiting trade agreement (Acta).

Leaked documents suggest that the proposals may give enormous power to copyright holders to police material on the internet without internet users having recourse to the courts.

The Electronic Freedom Foundation, an internet lobby group, has been fighting to expose the substance of the talks. In a blog entry, the EFF's Gwen Hinzer said, "The leaks confirm everything that we feared about the secret Acta negotiations.

"The internet provisions have nothing to do with addressing counterfeit products, but are all about imposing a set of copyright industry demands on the global internet, including obligations on ISPs to adopt three strikes internet disconnection policies, and a global expansion of DMCA-style [Digital Millennium Copyright Act] laws."

Business secretary Peter Mandelson has confirmed the UK government's intention to introduce a three strikes, notice and take down procedure in the Digital Economy Bill now being prepared to give effect to the final Digital Britain report.

"Three strikes/graduated response is the top priority of the entertainment industry," Hinze said. According to reports, Mandelson decided to speed up the introduction of the three strikes legislation following a meeting with Hollywood mogul David Geffen.

Although the substance of the Acta talks has been kept secret, it emerged in early September that the US Trade Representative was using nondisclosure agreements (NDAs) to share copies of the Acta internet text selectively outside of the USTR formal advisory board system.

Using a Freedom of Information request, the Knowledge Ecology International website discovered who had signed the NDAs. They included Google, eBay, Dell, Intel, Business Software Alliance, Rupert Murdoch's News Corporation, Sony Pictures, Time Warner, the Motion Picture Association of America, and Verizon.

Michael Geist, a Canadian academic who has been following the Acta talks, said the provisions do not include a fair use/fair dealing exception for using copyright material.

"Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices," he said in a blog entry.

Last week's rejection of Amendment 138 of the Telecoms Package by the European Council of Ministers may have its roots in the Acta negotiations. The amemdment aimed to protect internet users from interference by third parties.

According to Axel Horns, a German patent attorney who writes the IP::JUR blog, it appeared that "vested interests" namely copyright holders, had been "forum shopping" for lawmakers who could force through their agenda.

Not trusting their fortunes entirely to US negotiators at the Acta talks, they also tried the European lawmakers, in particular, the Council of Ministers and the European Parliament. "The crucial point is to shift the debate to the bodies on EU level dealing with the current Telecoms Package," he said.

The European Parliament will debate new language to replace amendment 138.

Monica Horten, who is studying the law-making process governing the Telecoms Package said that the Council of Ministers would accept only a text that permitted the Mandelson proposals, as well as Sarkozy's three strikes law.

"The European Parliament has proposed a text which is not great, but which does contain language that will make it awkward for the UK government," she said. "The issue for tonight is whether or not the European Parliament stands up for its own principles, and therefore protects British citizens as well as everyone else in the EU.

"Now that the Lisbon Treaty is ratified, the European Parliament has more power, and we should expect it to exercise that power on our behalf, and demonstrate that it is capable of scrutinising legislation in a democratic way," she said.


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