The new spin on the latest ACTA text after DC round

Notes from closed-door debriefing in European Parliament on secret text.

“We worked 16 hours a day for eight long days in DC to produce a readable text that we all agree on”, modestly stated EU negotiator Luc Devigne. He makes you wish he wouldn’t work so hard for the good of all of us.

What is clear is that the EU representative wants to show that he is being responsive to the concerns being expressed about ACTA and that the new “unidentified, undisclosed and flying” ACTA will be lighter, more vague and a happy medium for all. Though he gave us a large serving of political marketing and double speak, it is evident that the anti-ACTA campaign is having a deep impact on the parties involved.

Today in the European Parliament in Brussels Luc Devigne from DG Trade briefed the International Trade Commission in a closed door meeting on the latest round of the ACTA negotiations. He gave the impression that thanks to the EU many things were being “scaled back” to calm the worries of citizens and certain industries such as Internet Service providers or generic medicine producers.

He insisted that lots of progress was made in DC on most topics and that now the text was “less complicated”. At the same time he stated that there was a still a “long way to go” to bridge the gap between the US and the EU on issues of scope of rights covered in border measures (EU broader, US narrower), geographical indications, industrial design and border measures concerning not only import but affecting goods being exported and in transit. The US only wants trademarks, and copyright in border measures that will be limited to imports (as established in TRIPS), while the EU wants this extended At the same time he repeated that all patents were out of border measures and criminal sanctions and that nothing in ACTA would affect “access to medicine.”

The EU wants criminal enforcement measures on the use of Internet to spread fake medicines counterfeit industrial designs or trademarks, while the US does not agree.

According to Devigne the good news is that the clear references to ISP liability, along the lines of the US DMCA, in previous texts have been removed from the present text thanks to the EU. Now all enforcement measures proposed in the Internet will be “voluntary”. This “will please some, not others”, according to Devigne.

He spoke of a totally new “preamble” that includes “safeguards” with reference to the principles of TRIPs, the Doha Declaration on public health and the insistence that no enforcement measure in ACTA should threaten “privacy, freedom of expression or fundamental rights.” Devigne insisted that the checks and balances of TRIP concerning cooperation, technology transfer and harmonization of different interests were now part of ACTA.

On “commercial scale” the EU will only accept a vague, non defined term that will be left up to the courts of member states because EU law has no competence over this.

He blasted the US for opposing the publication of the present text and regretted not being able to have more public participation. He promised there would be a public release of the text before the final agreement is signed (How nice of them!). The next round will be in Tokyo at the end of the month.

The novelty of the new text seems to be the “preamble” and the elimination of references to compulsory secondary liability. Of course, the whole discussion today was over an obscure object of desire of the content industry called the unpublished DC ACTA text. It was easy for Devigne to please everyone without his audience being able to peruse the small print. Today was yet another surrealistic exercise produced by the progressive Obama Administration´s transparency policy.