EDRI has obtained and released four meeting notes documents. We took a look at the documents ourselves and found some very interesting points being made.
The one thing one should make clear from the beginning is that these documents are dated anywhere between 2008 and 2010. So, that provides some context of these documents. The first appears to be when negotiations occurred in December of 2008 which is when negotiations were in Paris. To add some context, this was a few months after the world originally caught wind of ACTA (which was back in May of 2008). At the end of July, a leak of what businesses were demanding also surfaced. The documents noted that, at the time, the US wasn’t as “pushy” on their positions given that a new administration was being put in place (Presumably the Obama Administration), so the US negotiators weren’t sure if the then newly elected president would be as dedicated to ACTA as the previous administration.
Fast forward to the July 2009 negotiations in Rabat. It was at this point that news of the leaked information made it to negotiators. The US apparently was embarrassed by the leak of information, blaming a congressional staffer for it in the process.
Then, moving on to negotiations in Seoul on November of 2009. Around this time, a memo pertaining to ACTA also leaked. At the time, that leak seemed to confirm the worst fears about the agreement. On the inside of the negotiations, tensions were definitely mounting as there was talk about Europe proposing their own version of ACTA to “balance” out the US demands. The US was also pushing to include copyright infringement into the agreement to which China and Japan agreed with. One of the points Europe was objecting to was with “aspects where the US proposal substantially differs or goes beyond EU harmonised law: obligation of civil and penal enforcement mechanisms; concept of “3rd party liability”; obligation for ISPs to implement “reasonable” anti-piracy policies; the obligation to have notice & takedown system; the relation between TPM protection and exceptions & limitations to copyright; the protection of access TPMs; the position regarding interoperability, etc.”
Europe also was at odds with the US on another front. Europe did “request for clarification of concepts such as “digital environment”, the definition of ISP, the need or not of judicial decisions to terminate/suspent internet access (in the US such judicial decision is required), the treatment of infringers information and the definition of “repeated offenders”, etc.”
That, for many critics of ACTA, merely re-confirms that a three strikes law was in ACTA at one point even though negotiators denied that such a provision ever existed in the first place.
The fact that documents regarding ACTA were leaked did not (unsurprisingly) sit well with negotiators. Questions were raised over the US sharing copies with private stakeholders in light of the leaks.
Even further, there were complaints that the US proposals in ACTA were complex and very confusing. What’s more, the US and Europe apparently had a tense exchange over the topic of transparency (as we all know already, the US has been the one dominant force blocking all efforts to make ACTA transparent). The US even went so far, at one point, to describe ACTA as “a good opportunity to have a “WIPO plus approach”.”
One portion of the notes say, “The exceptions from the ISP liability for third party’s illegal activity as proposed by the US are a clear reproduction of the Digital Millennium Copyright Act DMCA and therefore, the concepts and/or workings are different from the EU.”
This also seems to confirm what many have said all along, that ACTA is basically a push for a global DMCA. Europe also objected to the idea that users have their activity monitored by their ISPs. There was also discussions on Technical Protection Measures (TPMs). The US describes it as “WTC and WPP plus provisions”. Europe objected, saying that there was no legal safeguards for exceptions and limitations to copyright related rights.
Then, there’s the final document with notes from the Guadalajara negotiations in January of 2010. It wasn’t until July of 2010 when the full text of ACTA was first leaked, so these negotiations were prior to the initial full leak of ACTA.
The allusion to a three strikes laws were still present. This can be found on the second page where there was references to the Internet chapter. The document says, “US and EU agreed to make presentations of their own systems at the next round, to clarify issues. Major differences are on scope (EU, CH, and JPN offensive) and concrete requirements for ISPs to benefit from liability safe-harbours such as disabling access and notice & takedown (US offensive).”
A few other interesting notes was that France helped push for a copyright infringement task force. Also, scope of intellectual property covered by criminal and civil law has been a major sticking point for negotiators from beginning to end of these notes.
Personally, I think that even though negotiators were hoping to deny “rumors” of compulsory three strikes law, the lack of transparency thanks to the US repeatedly rejecting such efforts for so long was a monster of the ACTA negotiators inadvertent design. In other words, a lot of the problems facing ACTA was brought on thanks to the way ACTA has been handled.
Still, with mere memos causing so much chaos in the negotiations, one can only imagine the complete anarchy of the closed door meetings once the full text leaked just months later. It’s very hard to find any sympathy for negotiators though since this, as far as I’m concerned, is a frightening way to simply circumvent democracy. The idea that criminal laws are being formed in private and that governments around the world are presumably going to be asked to integrate them into their civil and criminal codes is just terrifying. I’m personally glad things have deteriorated as much as they have for ACTA on the basis of what sort of precedent it sets.