The government has failed to explain a decision to sign a controversial intellectual property rights treaty, amid fears it would lead to wide-scale internet censorship.

Its open-endedness and lack of accountability violate fundamental rights

News that Malta joined 21 other EU states among the latest signatories to the Anti-Counterfeiting Trade Agreement filtered through the international press and sparked significant online debate.

Questions put to the government by The Sunday Times remained unanswered.

ACTA seeks to create a new international regime for the protection of IP rights. Proponents say it will encourage innovation by protecting copyright, trademark and patent holders and combat software piracy.

But critics of the treaty – which was negotiated in complete secrecy until drafts leaked by Wikileaks led to outcries in 2009 – say that its open-endedness and lack of accountability violate fundamental rights, could lead toa policed internet and would strangle small-scale creativity.

Malta and 21 other EU members signed ACTA last Thursday, joining the US, Japan and 10 other countries as a treaty signatory. No press release was issued, and the government has so far not explained its position.

The treaty comes just weeks after protests against the US-based Stop Online Piracy Act and Protect IP Acts. It must still get past the European Parliament before it is enacted into law, with the EP scheduled to debate it in June.

Last July, the European Commission had recommended that Parliament pass ACTA without further ado, saying there was no conflict between ACTA and EU law.

A subsequent report to the European Parliament disagreed, noting certain areas of inconsistency between the two and warning MEPs that “unconditional consent would be an inappropriate response” to ACTA.

Defenders of ACTA, however, insist that the mass concern is unwarranted and that controversial clauses present in earlier drafts have been removed from the final text. A first draft of the treaty had required internet service providers to spy on users in an effort to police copyright infringement. It created a ‘three strikes’ policy, disconnecting users found to have infringed copyright and made ISPs directly liable if they failed to remove copyrighted content promptly.

ACTA’s provisions, which are often unclear and open to legal interpretation (see box), have worried internet service providers, as they place greater onus for policing uploaded content on ISPs rather than right-holders.

A spokesman for cable and internet service provider Melita confirmed the government had not consulted the company before signing the treaty and said its legal team was looking into the issue.

Melita reiterated its position that legal responsibility for uploaded content “should stand with the person performing the act” rather than ISPs and reassured subscribers that their internet service had not been altered.

It goes against the entire essence of the internet

Vanilla Telecoms CEO David Thake slammed the treaty. “It goes against the entire essence of the internet and gives governments and corporations unprecedented strength to take down entire websites and put people out of business at the stroke of a pen,” he said.

The implications, Mr Thake said, were immense.

“ACTA shifts the burden of proof and will lead to people’s websites being taken down before they’re even found guilty. The only people who stand to benefit are large corporations within the entertainment industry.”

Telecoms company Go said it was too early to comment on the treaty’s ramifications, with a spokesman noting that ACTA allowed individual countries considerable leeway in interpreting the treaty.

News of Malta’s signing of ACTA took social media networks by storm, with an overwhelming amount of negative feedback.

Several Facebook users slammed what they felt was the underhand way in which the treaty was signed, while others voiced concernabout its eventual impact on civil liberties or internet usage.

ACTA-what?

ACTA aims to establish a set of international standards for dealing with copyright and trademark infringement.

It does not establish new intellectual property right rules, but rather reinforces protection of existing ones. It does not only relate to digital media – physical items such as medicinal and clothing are also included.

Defence:

The EU loses up to €8 billion a year due to copyright infringement. ACTA will protect investment in innovation by making it harder to flout copyright laws and rewarding rights-holders whenever their copyrights are infringed. Concerns about ACTA creating a police state have been addressed in the final draft. ACTA does not restrict internet use in any way.

Tightened regulations will also help protect consumers against counterfeit prescription drugs.

Prosecution:

The text refers to ‘commercial activities’ but fails to define them and speaks of ‘direct or indirect’ economic advantage. In other words, if you upload a home video which includes a copyright image and enough people watch it, you could be criminally liable.

The treaty jeopardises freedom of speech, prioritising the protection of copyright over freedom of expression, association and the right to privacy, in violation of the European Convention on Human Rights.

It is unclear as to where the limits of ISP responsibility lie for uploaded content and extends liability to “alleged” infringers. Critics maintain this could lead to a self-censored internet, with ISPs and web hosters removing content pre-emptively out of fear of legal action.