In ACTA’s defence? | Antonio Ghio

The Anti-Counterfeiting Trade Agreement will not criminalise those who download films and music tracks in the privacy of their homes and for their personal use, ICT lawyer Antonio Ghio contends. But how far can one enforce copyright in the midst of a technological revolution which has made small-scale piracy a lifestyle?

‘I would protest against ACTA myself if the information being circulated on the internet was true. However, this is not the case’ - lawyer Antonio Ghio
‘I would protest against ACTA myself if the information being circulated on the internet was true. However, this is not the case’ - lawyer Antonio Ghio

It appears that lawyer Antonio Ghio took upon himself the task of single-handedly defending ACTA on the Facebook page of the local anti ACTA group thus becoming the movement's bete noire. I catch up with Ghio just after the ACTA debate held at University and organised by the 'Kunsill Studenti Universitarji' in which he debated the subject with MEPs Simon Busuttil and Edward Scicluna.

But half an hour later I still find the young lawyer engaged in a lively but friendly debate with representatives of the local anti-ACTA group.

Ghio seems to identify with a generation which grew with the internet and values its internet rights highly.

He makes it clear to me that he would be the first to protest against ACTA if the information being circulated on the internet are true. However, this is not the case.

Ghio is very categorical in excluding any new implications arising from Malta signing the ACTA treaty.

"What is legal today will remain legal with ACTA. What is illegal today will remain illegal with ACTA."

I face Ghio with a concrete example. If I download a movie from a torrent site in breach of copyright legislation, what will be my position with ACTA?

"Since most probably that movie is an illegal copy you will be in breach of already existing copyright law. But if that download is purely for personal use that does not make it a criminal act and ACTA is not saying that this will become a criminal act."

What if I just share a music track or video on youtube without even knowing whether this is in breach of copyright or not as many do on Facebook today?

"That is clearly not a criminal infringement.... The fact that during your personal online experience you are innocently sharing a link to some potentially infringing content by pressing the like or share option means that you are not making any copy of the material, which is already on the internet. You are simply making a note indicating to other users where they can view that information. That is clearly not illegal."

But although downloading from a torrent site in your private home and for your personal use is not a criminal act presently "there is nothing stopping a right holder like, for example, a Hollywood company from coming to Malta and sue for copyright infringement on the basis that the downloader is breaching copyright."

But although technically possible, "due to the economies of scale and due to the huge procedural problems that a company would have to sue thousands, if not millions of people across the world, they just don't do it but that does not mean that everything that exists on the internet is legal or free".

But Ghio acknowledges that there have been attempts in the United States to defend the interests of right holders vis-à-vis the multitude of individual pirates. But this is not the case of the final version of ACTA, Ghio insists.

"American legislative frameworks have developed in a way in which copyright holders can make test cases.  A normal user downloading a handful of songs can under American law even be found legally liable to penalties ranging into the millions. But that law is not Maltese law and is not European law."

Ghio also acknowledges that ACTA was initially an "American attempt" to transpose such legal frameworks to the rest of the world.

"It started as an American attempt to internationalise provisions contained in the US Digital Millennium Copyright Act. But that attempt failed. It was one of the initial proposed suggestions in the first drafts of ACTA". 

But when this was discussed also at a European level this proposal was not accepted.  

"Europeans did not want this version of ACTA and only accepted a watered down version of ACTA which contains no provisions that would switch off internet users of turn ISPs into Big Brother."

The criminal provisions contained in the ACTA treaty specifically refer to "piracy on a commercial scale." Ghio makes it clear that by no stretch of the imagination can this be applied to "domestic users who are downloading a film or two and 'enjoying' it at home."

But the law can apply to sites like Megaupload who engage in the breach of copyright legislation on a commercial scale by profiting from this activity.

"If am not profiting from that activity and making no gain there is no criminal sanction and this is already reflected in the Maltese criminal code."

So if ACTA changes practically nothing, why go in the trouble of drafting an international treaty?

Ghio replies by pointing out that the aim of the treaty is not to clamp down on private internet users but that of creating a level playing field between countries and introducing minimum levels of legislative harmonisation to clamp down on commercial piracy and the trade of counterfeit goods.

"Malta and Europe as a whole should ensure that other countries have sufficient tools to protect the intellectual property rights of their citizens if these are breached somewhere else.... ACTA provides a minimum level of safeguards at an international level."

Malta already has the minimum level of enforcement required by the treaty.

"With or without ACTA our laws already cater for the provisions contained in the new treaty".

Still one cannot deny the fact that people were not informed about the treaty when a number of countries including Malta added their signature to it. Has this not contributed to popular suspicion on the treaty?

"Definitely. ACTA was not on anybody's radar. But this does not mean that it was not publicly available or that things were done in secret. Also, it doesn't not mean that the provisions contained in ACTA are essentially wrong".

In fact Ghio sites a number of articles published on (a technology oriented news site) in 2010.   One of these articles published in October 2010 quotes Michael Geist an expert in the field stating that unlike legislation proposed in the US, "from an internet perspective, this (ACTA) does not change much of anything".

If it was all discussed in secret how come people were already writing about the important and key changes made to the ACTA text two years ago asks Ghio.

But if ACTA does not change anything for Internet users, how does Ghio explain the big outcry by Internet users against the ACTA treaty.

According to Ghio the outcry must be seen in the light of the sequence of events during January, which started with the Megaupload case where an extradition request by the US authorities was forwarded to New Zealand authorities who proceeded to arrest officials of the company.

On 18 January, hacker collective Anonymous hacked the Department of Justice and Universal Music's websites to protest the US government's decision to shut down the popular Megaupload file-sharing site.

The debate on ACTA was also preceded by a huge outcry against draft US bill known as SOPA (Stop Online Piracy Act), which resulted in a number of sites like Wikipedia closing down for a day as a protest. This was so effective that the US Congress ended up shelving the bill.

"Exactly after SOPA members of social networks were exposed to various claims linking ACTA to SOPA..."

Ghio thinks that groups like Anonymous were simply looking for a new cause after winning their battle against SOPA.

"Now that SOPA has been defeated they are turning in to ACTA... making many believe that ACTA and SOPA are the same thing."

In fact one of the first and only source of information about ACTA that people relied on was a video aptly called 'what is ACTA?' produced by Anonymous.

"That's the power of social media. People got carried away...and it also gave the Maltese the chance of feeling part of a global hactivist protest group...But they were either being misguided or relied exclusively on outdated information." 

One thing is sure; SOPA is entirely different from ACTA.

"SOPA would have resulted in a huge level of internet censorship. SOPA would have made sites like Facebook and youtube responsible for any illegal content they hosted... If Wikipedia contained copyrighted information it risked being shut down. It also envisioned that normal users could be disconnected from the internet through the application of the three strikes you are out principle. SOPA would have killed the free internet".

Although these principles (together with provisions contained in DMCA) were proposed in the first drafts of ACTA, they are not found in the final draft of ACTA.

The mix up between SOPA/DMCA and ACTA has also generated fears that the new treaty will increase pressure on ISPs to police internet users to ensure that they are not breaching copyright legislation through the introduction of techniques such as deep-packet inspection.

"This is completely incorrect. This is a principle found in SOPA and earlier versions of ACTA but not in the final draft. Part VI of our Electronic Commerce Act which has been in place since 2001 clearly provides what ISPs can and cannot do. This will not change".

He also points out that attempts to introduce the three strike rule without judicial review in Europe has already been tested and defeated in the France.

"The original bill of a French law also known as HADOPI Law had allowed right holders to contact directly the ISP in cases of copyright infringement which could lead to an end user loosing his internet connection. But the French constitutional court turned down this bill confirming the principle that the final decision to cut off a person from the internet should follow proper judicial review and not left solely in the hands of a right holder or the ISP."

Moreover, all the provision of ACTA have to respect freedom of expression, fair process and the right of privacy.

"Unfortunately, the initial mass public reaction to ACTA was that it was going to turn each one of us into criminals and ISPs into policemen."

Ghio blames the incorrect information widely available online for misleading the public. But is it not thanks to the vigilance of these anti-ACTA groups that ACTA itself has been changed to include safeguards?

Ghio said that in this case the required safeguards were already in place in 2010 and the internet is rife with misconceptions and that the final version of ACTA explicitly provides that any legislative intervention by the Parties has to be consistent with that Party's national law, preserve fundamental principles such as freedom of expression, fair process and privacy as well as balance the interests of right holders, service providers and users. 

What is sure is that the new generation of internet activists has contributed to a heightened awareness on what Ghio refers to as the "rights to the internet."

Ghio subscribes to this point of view.

"I would be against anything which reduces or effects my right to the internet, I would be completely against it but ACTA has nothing to do with this."

But is there a risk that ACTA would grow in to something more sinister by having amendments to it approved by an unelected committee, which the treaty itself entrusts with the task of administrating the convention?

Once again Ghio rules out this possibility.

"Chapter V of ACTA makes it clear that any party to the treaty will sit on the ACTA committee and will have the right to present amendments which will then be received by the committee. Any proposed amendments will be presented to all the parties to the treaty and these parties have to meet to decide whether to accept these amendments or not. Therefore any change to ACTA cannot be done without the consent of all its signatories including Malta."

One of the concerns is that lobbies will be able to get their way by influencing this committee.

"Unfortunately, we are imagining this committee as being a boardroom full of big lobby groups and right holders who would push their agenda in the text of ACTA and imposing it on national legislation. This is not the case as the ACTA committee is purely composed of representatives of the parties to the treaty and any changes must be approved by the same signatories."

I refer to particular sections of the treaty like Article 9, which refers specifically to civil damages resulting from copyright infringement. These provisions can be applied against any person infringing copyright.

This has generated fears that if one downloads 20 songs one could end up being liable to pay thousands of euros.

But Ghio rebuts the "misconception" that this will give right holders the final say in quantifying the damages.

He insists that this is not the case as it will always be the courts, which will finally consider and quantify the damages, as is the case with existing legislation which is based on the principle of proportionality.

"If I have a car accident with you and you trash my car there is nothing in the law stopping me from asking the court to demand a million euros in compensation. But it does not mean that the courts will accede to this proposal. There is no set formula on how damages should be calculated. What the law says is that the right holders have a right to propose the calculation of damages.

"Nothing changes with ACTA. Ultimately it's always the court that decides."

On this point Ghio questions whether downloading for personal use entails any damages at all.

"I might be downloading a particular song to check the new album of a particular band and than I decide that I like it and even proceed to buy it. What damages were created to the right holder in that case?"

This takes our conversation to another level. Doesn't the wave of public outrage against SOPA and ACTA reflect a growing tension between a legal framework designed to protect right holders and technological realities which offer unlimited choice to the consumer while defying any attempt to control cyberspace. 

Ghio frankly admits that "law can never catch up with technology and whatever kind of legislative intervention introduced technology will always be 10 steps ahead.  Law is always trying to catch up".

In this way new technologies such as the personal use of torrent sites resulted in a situation where "there is no big culprit and everyone is part of the offence in very tiny bits".

The ailing music industry is a case study on how the impact of these new technologies and distribution channels.

Some bands reacted by trying to defend their property rights. One such earlier case in 2000 involved the rock band Metallica which sued Napster because their tracks were being uploaded on this site.

But other musicians reacted differently. In 2007, bands like Radiohead put their 7th studio album In Rainbows online against the payment of a very small token fee known as 'pay what you want'.

But the greatest shift was in the way bands earn their money.

"Nowadays artistes are not making tonnes of money by selling CDs but they earn the bulk of their money from performing live in concerts."

The reasoning which is prevailing in the industry is "I'll make my music available online without worrying about file-sharing and if people like me they will be willing to pay for my shows. A potential mass audience is created, irrespective of copyright infringement".

Apart from the internet, there has been concern that ACTA could have a negative impact on the generic medicine sector, something which could impact on the Maltese economy which over the past years has attracted investment in this sector.

Once again Ghio is categorical in excluding any impact of ACTA.

"It will have no impact on generics as long as present laws are being followed." Also, the application of civil enforcement and cross-border measures relating to patents fall under the discretion of the parties and are not obligatory. 

He points out that one of the safeguards included in ACTA due to pressure by the European Parliament is a direct reference to the Doha declaration on public health.

He also specifies that the generic version of a pharmaceutical product can only be marketed once the patent of the original product expired so the enforcement of patents under ACTA as far as generics are concerned is irrelevant since the original patent would no longer be valid and you cannot enforce a dead patent.

"In Malta we were wise enough to introduce legal provisions through which companies can start conducting tests and applying for authorisations prior to the expiry of the patent so that as soon as the patent expired the new generic version can be marketed."

None of this will change with ACTA.

While everyone has immediately labelled Ghio as pro-ACTA, his reaction is somewhat different: "I just want everyone to form their opinion on ACTA based on solid facts and not on fears".