A document leaked from the Presidency of the EU reveals moves to push criminal sanctions into the Anti-Counterfeiting Trade Agreement (ACTA), just days ahead of the next round of negotiations.
The document published online here, by citizen advocacy group la Quadrature du Net shows how unelected lofficials are attempting to criminalise some copyright infringement activities, even where no financial motivation is demonstrable.
A ninth round of ACTA negotiations is scheduled to begin next week in Luzern, Switzerland, but it seems that the Presidency of the Council of the European Union is taking part, rather than democratically elected representatives.
The leaked document states: "Each Party shall provide for criminal procedures and penalties to be applied in cases of wilful, unauthorised importation and domestic use in the course of trade on a commercial scale of labels,
(i) to which a mark has been applied, which is identical to or cannot be distinguished from a trademark registered in its territory, and
(ii) which are intended to be used on goods or in relation to services which are identical to goods or services for which the trademark is registered."
The proposals also seek to criminalise "infringements that have no direct or indirect motivation of financial gain".
It adds that, the provisions of this section "shall apply to inciting, aiding and abetting the offences referred to (above)", which is clearly an attempt to implicate file-sharing services and possibly search engines in such "criminal" undertakings.
"Each Party shall provide for effective proportionate and dissuasive penalties. The available penalties shall include imprisonment and monetary fine(s)," the document states.
This shows, according to la Quadrature du Net "that ACTA goes way beyond the scope of a regular trade agreement"
Meanwhile, over 90 "academics, practitioners and public interest organisations from six continents" gathered at American University Washington College of Law, last week produced statement claiming that ACTA threatens "numerous public interests".
The official text of the Anti-Counterfeiting Trade Agreement (ACTA) was released for the first time in April, 2010, the academics note, and they find its contents disturbing.
"We find that the terms of the publicly released draft of ACTA threaten numerous public interests, including every concern specifically disclaimed by negotiators," the statement notes.
"Negotiators claim ACTA will not interfere with citizens' fundamental rights and liberties; it will.
"They claim ACTA is consistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS); it is not.
"They claim ACTA will not increase border searches or interfere with cross-border transit of legitimate generic medicines; it will.
"And they claim that ACTA does not require "graduated response" disconnections of people from the Internet; however, the agreement strongly encourages such policies.
According to the academics the legislation interferes with established international agreements and legislation such as the World Trade Organization Agreement on Trade Related Aspects of Intellectual Property Rights. It will even threaten global access to affordable medicines.
The communique said that the ACTA is the "predictably deficient product of a deeply flawed process".
"ACTA alters traditional and constitutionally mandated law making processes by:
Exporting and locking in controversial and problematic enforcement practices, foreclosing future legislative improvements in response to changes in technology or policy;
Requiring substantive changes to laws of many countries without legislative process;
The process of ACTA's negotiation is fundamentally flawed. Specifically, the negotiations: Have not been conducted in public as are many multilateral negotiations;
Have not been accompanied by evidence demonstrating the public policy problems sought to be addressed;
Have proceeded under conditions that restrict public input to select stakeholders, held off-the-record and without access to the latest version of the rapidly changing text;
Lack a balanced representation of stakeholders, especially from civil society."
Jérémie Zimmermann, spokesperson for La Quadrature du Net adds his voice to the chorus of disapproval, stating: "The ACTA agreement, by its opacity and undemocratic nature, allows criminal sanctions to be simply negotiated. The leaked document shows that the EU Member States are willing to impose prison sanctions for non-commercial usages of copyrighted works on the Internet as well as for 'inciting and aiding', a notion so broad that it could cover any Internet service or speech questioning copyright policies.
He adds: "EU citizens should interrogate their governments about their support to policies that obviously attack freedom of speech, privacy and innovation. Around the next round of negotiations and beyond, ACTA should be restlessly combatted and opposed worldwide."