Legal Expert Says Anti-counterfeit Deal Should Be Scrapped

A leading data protection expert said Tuesday that the international anti-counterfeiting trade agreement (ACTA) is "badly-drafted, breaches many fundamental rights and lawmakers should throw it out and start from scratch."

The accord, which was signed by the United States, Australia, Canada, Japan, Morocco, New Zealand, Singapore and South Korea on Saturday, has been dogged by controversy since its inception. The aim is to prevent intellectual property piracy, but many in the European Parliament believe it goes too far and is too draconian.

Controversially, it leaves the door open for countries to introduce the so-called three-strikes rule, which would see Internet users cut off if they download copyright material as national authorities would be able to order ISPs to disclose personal information.

As a result, the Greens in the European Parliament commissioned Douwe Korff, professor of international law at London Metropolitan University, to do a study on the human rights implications of the accord.

"Firstly this agreement was drafted in unprecedented secrecy," said Korff. "The European Commission had very flimsy dialogue with civil society, but the big IP holders were consulted. It gives enormously strong enforcement to rights holders and ignores the rights of ordinary consumers. We were quite taken aback by the lack of balance in the instrument." He added that it was "stupid" to sit in a room and draft a treaty with only one side of stakeholders present.

The ACTA text makes no allowances for trivial or justified infringement, for example in the case of whistle-blowing, Korff said. In these cases, states should allow freedom of expression to override intellectual property rights, he said.

The study also expresses concern about the "privatization of law," saying that leaving it to ISPs to determine what can be allowed on the mere say so of the rights holder deprives citizens of 'due process'. These are serious issues that are not addressed, Korff said. "It is implicit in the ACTA text that Internet service providers should be encouraged to monitor the activity of the users to identify who might be infringing copyright."

Jan Philip Albrecht, member of the European Parliament for the Greens, said that his political group was asking the European Court of Justice for an opinion, but they would not be voting for it when the ACTA text goes before the whole Parliament in December. It is not yet clear how other political groups are going to vote.

The European Parliament has also asked its own legal service, the JURI committee, about the legality of ACTA. If ratified, ACTA will become a source of E.C. law and will be used by the European Court of Justice in the course of preliminary rulings for interpretation and validity of secondary law. ,.

Follow Jennifer on Twitter at @BrusselsGeek or email tips and comments to jennifer_baker@idg.com.

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