My Blog: Increased risk of #Extradition via #ACTA Harsh Interpretation and Implementation would make it easier.

Expanding in my initial perhaps tin-foil cap view yesterday regarding extradition via ACTA.

A refresh of what European Commissioner Karel De Gucht said (and my comments, from early-hours-of-this-morning post: ),

ACTA states that countries signing up may give their intellectual property enforcement authorities the power to compel an internet service provider to disclose personal data on subscriber accounts to rights holders, if the account is suspected of being used for infringement.

To understand the provision, let’s first imagine a scenario where it might actually be used, if one of the ACTA signatories chose to put this in their domestic legislation.

Let’s say a particular website is alleged to be profiting from giving unauthorised access to a copyrighted episode of a television series. If such a provision was in the law of an ACTA signatory, it would mean that the producer of the series could make a request to the competent court. It would request that the company that is hosting the website disclose the identity of the individual who is allegedly making money from their unauthorised dissemination.

But, for any action to be taken against that person, the copyright holder would have to either pursue them through the court for civil damages or report their action to the authorities for criminal prosecution, as you or I would report a stolen wallet or purse. No legal action would be taken against the person concerned without due process under our existing law.

But we must understand something else: this provision of ACTA is not even legally binding. International treaties do take precedence over European and national law in our legal order. But when an international treaty indicates that the signatories “may” take a particular course of action it does not mean that they have to take that course of action. In this provision, ACTA changes nothing about our freedom to make policy. The treaty is simply pointing out what some of its signatories consider to be best practice.

A refresh of my first thought:

My first thought was, this is setting people up to be extradited to ACTA signatories who go the whole hog and “choose” to implement ACTA with the harshest interpretation & options they can.  I can think of one country who has lots of IP who is not averse to extraditing people on mere accusation – the USA. Currently, they cannot be extradited, but once it becomes a criminal matter, the USA could set tariffs high enough to mean extradition would be a legal avenue they could pursue.

In the UK there is the Extradition Act [2003], here is a pertinent fact from the Crown Prosecution Service’s fact-sheet:

The meaning of extradition offence is given in sections 64 to 66 of the Act. In simple terms, in cases where a person is wanted for prosecution the offence must usually be one that could lead to a prison sentence of at least 12 months in the requesting state. For certain offences that are listed in the framework decision and which could lead to a prison sentence of at least 3 years in the requesting state, there is no requirement that a parallel offence exists in UK law.

Should a Party to ACTA domestically pass legislation that makes infringement IPR (by creating, obtaining, or aiding the obtaining of ACTA defined infringing goods) an offence that carries a tariff above the threshold in the Extradition Act, that state could request the extradition of the infringer to stand trial in that harsh implementer-of-ACTA’s courts.

The Bulgarian commentator in INTA today said Bulgaria did not want to criminalise it’s citizens for pirating goods. If Bulgaria were to sign up to and ratify ACTA and some other party were to implement legislation domestically criminalising pirating of goods, Bulgaria would imv have been partly responsible for criminalising their own citizens, something he said Bulgaria specifically did not want ACTA to achieve.

States signing up to ACTA risking criminalizing their citizens indirectly and subjecting their citizens to possible extradition to other Parties to ACTA via the mechanism extradition Treaties and the criminalization of previously civil and/or low tarriff matters.

Additionally, Karel De Gucht European Commissioner for Trade talked a lot about it being the responsibility of EU member state and Parties to ACTA to  interpret, implement, and enforce what the broad meanings of terms in ACTA meant to them.  This gives rise to many possible interpretations, implementations, and enforcement procedures, as many as their are Parties to ACTA.

Some Parties [Bulgaria] could choose mild interpretations, implementations, and enforcement procedures, other Parties [USA] could choose very harsh interpretations, implementations, and enforcement procedures. Those milder Parties with extradition treaties to harsher Parties need to understand the risks ACTA posses to their citizens.

In Sweden last year, “15-year-old facing jail time for downloading 24 movies. A 15-year-old boy in Sweden is facing up to two years in jail because the head teacher at his school reported him to police for illegal file downloading.“:

In the United States, “the Copyright Act provides for criminal prosecution in some cases of willful copyright infringement. There are also criminal sanctions for fraudulent copyright notice, fraudulent removal of copyright notice, and false representations in applications for copyright registration. The Digital Millennium Copyright Act imposes criminal sanctions for certain acts of circumvention and interference with copyright management information. There are not criminal sanctions for violating the rights of attribution and integrity held by the author of a work of visual art. Criminal penalties for copyright infringement include: fine of not more than $500,000 or imprisonment for not more than five years, or both, for the first offense.“:

In the US, a woman was fined $1.5m for downloading 24 music files. Are citizens of countries who are Parties to ACTA facing extradition to the US for a similar offence, indeed, is it thoretically possible for them to be extradited to the US for downloading just one IPR infringing song/film?

So in summary, the criminalization via ACTA and the whims of harsh enforcers of Parties to ACTA could lead to unintended consequences for the citizens of milder Parties to ACTA.

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