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Europe's ISPs object to secret copyright treaty talks

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Secret trade talks on counterfeiting and copyright threaten to undermine citizens' rights without giving them a voice in negotiations, European internet service providers (ISPs) have warned.

EuroISPA, a trade body representing 1,700 European ISPs, has called the Anti-Counterfeit Trade Agreement (ACTA) talks 'heavy handed' and says that they threaten to undermine the protection offered to ISPs under EU law.

Secretive talks between Japan, the US, the European Commission and other countries have been going on for two years. The lack of transparency has worried digital rights campaigners, who have said that citizens' rights to internet access could be under threat.

ACTA proposals published earlier this year by the US government made it clear that countries were discussing involving ISPs directly in the battle against online copyright infringement.

The plans said that the countries were discussing "the possible role and responsibilities of internet service providers in deterring copyright and related rights piracy over the internet".

Some governments, including the UK's, are already committed to passing laws ordering the cutting off of households in which a member is accused of illegal file-sharing.

"If some of the proposals currently under discussion in the context of these trade negotiations are adopted, Internet Services Providers will have to implement 'graduated response' measures, which could lead to users being disconnected from the internet," said a statement from EuroISPA on leaked plans. "Action points discussed at the last round of negotiations would also threaten the protection granted to online businesses by the EU."

"Such heavy-handed measures would create a serious danger of undermining and restricting the open innovative space that lies at the very heart of the internet’s success," said Malcolm Hutty, president of EuroISPA. "This agreement would have a negative impact on internet users without having an appreciable impact on fighting illicit use of copyrighted material.”

EU laws protect ISPs from liability for the use of their networks, at least until a network owner is informed about the conducting of illegal activity. EuroISPA said that this could be about to change.

"This core principle for the functioning of the Information Society was enacted in the 2000 Electronic Commerce Directive, setting the legal framework for ISP liability and preventing Member States to require ISP to monitor their services," said the EuropISPA statement. "The E-Commerce directive has proven to be a flexible instrument in developing businesses online, to the benefit of consumers. The last round of ACTA negotiations risks disrupting this balance by increasing burdens for legitimate commerce, creating a negative impact on innovation, distorting competition and, finally, undermining consumers’ fundamental rights to privacy and free flow of information."

The negotiations are taking place privately, outside of the more transparent structures of the World Intellectual Property Organisation (WIPO) or the World Trade Organisation (WTO), the more common venues for such trade talks.

The secrecy has bred suspicion, and rumours have emerged that the talks aimed to force border searches of iPods and computers for pirated music, which turned out not to be true.

Last month activists were angry about a number of proposals said to be under discussion, including the creation by each country of a 'laundry list' of penalties for copyright infringement and the criminalisation of the production of fake packaging for pirated goods.

These, and other rumoured elements of the talks, are already part of UK law, though. Intellectual property law expert Kim Walker of Pinsent Masons, the law firm behind OUT-LAW.COM, said at the time: "When they bemoan the lack of transparency in negotiations, ACTA's critics are entirely right. But the exaggerations, while a perfect illustration of why the secrecy is dangerous, do not always help the critics' case".

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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