How ACTA Turns Private, Non-Commercial File Sharing Into ‘Commercial Scale’ Criminal Infringement

We’ve already discussed some of the problems of the “near-finalized” draft of ACTA, but the deeper people dig into the agreement, the worse it gets. We had noted, in our original post, that the definition of “commercial scale” matters a lot, and Glyn Moody points us to an analysis that shows how the ACTA negotiators cleverly scaled back their definition of “commercial scale,” to make it both vague and incredibly broad. The current text in ACTA reads:

ACTA 2.14.1: “Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. [ACTA footnote 9]

For the purposes of this section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.”

“Carried out as commercial activities for direct or indirect economic or commercial advantage.” Could you be any more inclusive than that? We’ve recently discussed how the borderline between commercial and non-commercial use can sometimes be very difficult to distinguish. Under ACTA, it appears that when in doubt, it’s commercial scale.

Of course, what’s really troubling here is that the EU negotiators had already promised that there would be no definition of “commercial scale.” Yet, there is… and it’s a lot worse than what the EU Parliament had already determined “commercial scale” to cover. The analysis linked above, first looks at the Max Planck Institute’s analysis of “commercial scale” infringement, where it notes that just saying “commercial scale” “fails to provide for an appropriate and sufficiently precise definition of the elements of a crime” under the current laws of the EU. Instead, it says such actions can only qualify as a crime if the following conditions are met:

  • Identity with the infringed object of protection (the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion [construction, assembly, etc.]).
  • Commercial activity with an intention to earn a profit.
  • Intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right.

Note that none of that is found within the ACTA definition. The report also highlights the EU Parliament’s own definition of commercial scale, which has important caveats not found in ACTA:

“infringements on a commercial scale” means any infringement of an intellectual property right committed to obtain a commercial advantage; this excludes acts carried out by private users for personal and not-for-profit purposes

Notice how the ACTA negotiators conveniently left out the exclusion at the end. So for all the talk of how the new ACTA would only focus on “commercial scale” infringement, by subtly changing (mostly via omission) the definition of “commercial scale,” ACTA now covers an awful lot that most people would not, in fact, consider to be “commercial scale.” We’ll leave it as an exercise to the reader whether these omissions were done through incompetence or for other reasons.

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