Europe 'will not accept' three strikes in Acta treaty

The European Commission has pledged to make sure the Acta global treaty will not force countries to disconnect people for unlawfully downloading copyrighted music, movies and other material.

The assurance from the office of the trade commissioner, Karel De Gucht (pictured), is the strongest statement on Acta (the Anti-Counterfeiting Trade Agreement) to emerge from the new Commission since it took office earlier in February.

"We are not supporting and will not accept that an eventual Acta agreement creates an obligation to disconnect people from the internet because of illegal downloads," John Clancy, De Gucht's spokesman, told ZDNet UK on Thursday.

"The 'three-strike rule' or graduated response systems are not compulsory in Europe. Different EU countries have different approaches, and we want to keep this flexibility."

The Acta negotiations, which have been taking place since 2007, aim to create a new global intellectual-property enforcement regime that builds on the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). Much of Acta is taken up with trademark protection and counterfeit goods, but the draft text also has a section on online copyright protection, according to published summaries.

All the countries involved have agreed to keep draft texts confidential until the final treaty is agreed. In these secretive circumstances, many people have expressed fears that Acta will force signatory countries to cut the broadband connections of individuals who download copyrighted music, films and software.

These fears have been stoked by leaked negotiation documents, notably an October 2009 EU commentary on a US proposal. The commentary indicated that the US wanted an account-termination system to be put in place, with "civil remedies, as well as criminal penalties" for copyright infringement.

"The EU Commission maintains that any criminal action should be for infringements on a large, commercial scale only," Clancy said on Thursday.

"[Acta] has never been about pursuing infringements by an individual who has a couple of pirated songs on their music player. For several years, the debate has been about what is 'commercial scale'. EU legislation has left it to each country to define what a commercial scale is and this flexibility should be kept in Acta."

Clancy also addressed concerns raised on Monday by the EU privacy chief, Peter Hustinx. Hustinx complained in an official opinion that he had not been consulted on the contents of Acta. He also expressed fears that data protection and privacy safeguards were not being built into the treaty from an early stage, and called for a public debate on the treaty.

"When we say that any future Acta agreement must respect existing European and national legislation, we mean exactly that," Clancy said on Thursday. "There will be no watering-down of the existing rights and protection afforded to our citizens.

"Rumours pretend that Acta would ignore civil liberties and data protection — we are neither willing nor able to do that. The EU already has very stringent laws that defend individuals' civil liberties and personal data protection — they have to be respected; they cannot be overruled or ignored by this international treaty."

De Gucht and the other new commissioners took office early in February. He has not publicly weighed into the issue of Acta since his confirmation hearing on 12 January, where he maintained that the treaty was concerned with "organised counterfeiting, in most cases by organised criminals" and stressed that "the idea is certainly not to limit the freedom of expression through the internet".

"I will abide by the Telecoms Package in relation to Acta; Acta should not be designed to be something of a key to close the internet," De Gucht said at the time.

The new commissioner for Europe's digital agenda, Neelie Kroes, also talked about Acta at her confirmation hearing. She said she had discussed the issue with De Gucht, adding that the Commission required other negotiating countries to "guarantee, number one, the same level of protection for intellectual-property rights that the EU currently applies with all the due guarantees provided by [European law]".

"The Commission is in line with the current level of harmonisation of [intellectual property rights] enforcement and there will be no harmonisation via the back door," Kroes said at the time. "We stick to the line; they have to move to our side, and that is it."

Countries involved in the Acta negotiations include the US, the EU, Switzerland, Japan, Australia, Canada, Jordan, Mexico, Morocco, New Zealand, South Korea, Singapore and the United Arab Emirates. The treaty is expected to be finalised by the end of 2010.