New version of ACTA: the one certainty is the restriction of our freedoms

The latest version of ACTA, the “anti-counterfeiting” trade agreement, has just been published. These secret negotiations have produced a set of unacceptable measures. April is therefore calling for France and Europe to walk away from these inside arrangements which are perverting the very fabric of democracy and of our freedoms.

On Wednesday, October 6 2010 the latest version of ACTA, the so-called “anti-counterfeiting” trade agreement, was published.

Negotiators supposedly reached a “near-agreement” 1 on the text which threatens basic freedoms and endangers fundamentals rights such as the access to drugs, Net neutrality or the freedom to choose one's software2. Compared to former leaked versions, many clauses were expunged from the text and replaced with vague clauses involving no legal consequences for the parties.

Nevertheless, even though it avoids many questions, this text adds an extra layer of locks to DRMs, sanctifying digital locks as the rule, and the possibility of circumventing them an exception left to the will of stakeholders3. This pretence of an agreement is an unacceptable attack on our freedoms and on free software authors' and users' legal security; for these reasons, April is calling for France and Europe to walk out on these pseudo negotiations which pervert the foundations of our very democracy using tactics kept hidden from both elected institutions and citizens.

As far as free software is concerned, the previous versions of the text were in complete violation of EU and French laws. Although the most glaring illegalities have been removed4, the terms used in the text are still not clearly defined5 and are, in the current version of the text, a cause of legal uncertainty for free software authors, vendors and users.

Indeed, if the prohibition of digital locks circumvention is limited “to the extent provided by the law” in each party state, the same limitation does not apply to the development or the distribution of software used with respect to digital works. Consequently, “the manufacture, importation, or distribution of a device or product, including computer programs” that “has only a limited commercially significant purpose other than circumventing an effective technological measure” is strictly prohibited in the current version of the agreement.

The agreement is also silent about the right to interoperability as well as the decompilation exception -- although those two are set out in French and European law6.

ACTA is hiding behind very generic terms : “the obligations in paragraphs 5, 6 and 7 are without prejudice to the rights, limitations, exceptions or defenses to copyright or related rights infringement under a Party's law”. As a consequence, the text settles with setting up restrictive and freedom-depriving measures without bothering to safeguard against their harmful misuse :the protection of consumer freedom as well as affirming the interoperability principle and the choice of uses are reduced to a simple footnote on what state legislators might propose, which is insufficient. Where restrictions to freedom are set in stone, the protection of fundemental rights are shunted by the text and thrown out the door : with ACTA, only freedoms restrictions are put into place, while their safeguards are ignored.

All in all, the whole text's creation process is anti-democratic and threatening to our freedoms. It also threatens such basic rights as the access to drugs7 or the basic freedoms of internet users8. The setting up of an “ACTA committee”9, which could amend the agreement's text with the approval of the executive of the states which take part to the agreement, without neither a vote from the legislative bodies nor any public debate, allows the parties to ensure a later harshening of the text.

Following a meeting with a negotiator for France at the beginning of September, April had called for the end of the negotiations in light of the threats this text embodies. The latest negotiations, as deaf to outside influence as they are secret, confirm the fears expressed by April in its previous press releases10 and confirm that such an international agreement should not be done without public and parliamentary debates. April renews its call for the withdrawal from the negotiations by the European Commission and by all institutions involved in those anti-democratic negotiations.

• 1. See for instance this article from Le Monde (in French).
• 2. For more information, see the joint press release form ActUp-Paris, April and La Quadrature du Net.
• 3. See article 2.18, paragraph 5 of the agreement
• 4. On this subject, see our September 7, 2010 analysis. The text made the prohibition of digital locks circumvention non-negotiable (article 2.18 of the August, 25th version of the text).
  It gave authors or producers the right to impose limitless user restrictions, including on rights granted by copyright (copy, etc.) . The text does not respect French and European law, which guarantee exceptions for decompilation and favour interoperability.
• 5. For instance, the effectiveness of a technical measure is defined as follows :“technological measures shall be deemed effective where the use of protected works, performances or phonograms is controlled by authors, performers or producers of phonograms through the application of a relevant access control or protection process, or a copy control mechanism, which achieve the objective of protection” (Article 2.15).
• 6. In the absence of readily available technical specifications, the decompilation exception allows researching the information needed to achieve interoperability without requesting the editor's authorization. This exception is protected by the L122-6-1 article of the French intellectual Property Code and by the 1991 European Directive on the legal protection of computer programs, and was affirmed by the French Conseil d'État in its July 2008 decision following a litigation brought to court by April.
• 7. The threat on the access to drugs is mainly defended by ActUp Paris in their press release (in French).
• 8. This is denounced by La Quadrature du Net in their press release.
• 9. The “ACTA committee” is bought on article 5 of the text currently discussed.
• 10. See our file on ACTA.