The European Commission hosted a fascinating consultation on ACTA today. Luc Devigne, the lead European negotiator, opened with a brief presentation and proceeded to field questions for over an hour. The full consultation video is available online. The discussion touched on many issues including Devigne arguing that the WTO consistently blocked any attempt to address IP enforcement issues and stating that the treaty is limited to enforcement and not new substantive provisions (this assumes that anti-circumvention rules are a matter of enforcement, not substance).
The two big issues of the day, however, were three strikes and the European Parliament ACTA resolution. On three strikes, Devigne repeatedly stated that the EU was bound by EU law and that it was not supporting any inclusion of three strikes in ACTA. In fact, Devigne went further in claiming that no one had even proposed the possibility of three strikes. This despite the fact that a memo produced by his own department stated:
EU understands that footnote 6 provides for an example of a reasonable policy to address the unauthorized storage or transmission of protected materials. However, the issue of termination of subscriptions and accounts has been subject to much debate in several Member States. Furthermore, the issue of whether a subscription or an account may be terminated without prior court decision is still subject to negotiations between the European Parliament and the Council of Telecoms Ministers regarding the Telecoms Package.
This refers to the footnote in the ACTA text proposed by the U.S. which states "an example of such a policy [ISP policy] is providing for the termination in appropriate circumstances of subscriptions and/or accounts on the service provider's system or network of repeat infringers." In this sentence, the U.S. has proposed using the word "and" while the Australians prefer "or." I would argue Mr. Devigne would be more credible if he would not base unequivocal statements on the fact the text appears in a footnote and not within the article itself.
Calls on the Commission to continue the negotiations on ACTA and limit them to the existing European IPR enforcement system against counterfeiting
Devigne was repeatedly asked whether the European Commission would respect this part of the resolution. The response was to point to another part of the resolution stating the Parliament
Urges the Commission to ensure that the enforcement of ACTA provisions – especially those on copyright enforcement procedures in the digital environment – are fully in line with the acquis communautaire
to suggest that there was a conflict within the resolution (or at least an opening to continue discussions beyond counterfeiting matters). The discussion, which included actual Members of the European Parliament, suggests that a future court fight over respect for the resolution is a possibility.