Countries such as India have expressed concern that it conflicts with the TRIPS Agreement. Other elements of the agreement increase the standards in the WIPO Internet Treaties and the commercial scale definition at the WTO. The agreement adds new criminal provisions, pressures ISPs to take greater action, and heightens border measures. There remains ongoing debate as to whether the substance of ACTA requires legislative change in many signatory countries (a somewhat dated site on many ACTA issues here).

Beyond the substantive concerns, the ACTA process remains a major issue as it sets a dangerous precedent for international IP agreements. For years, the ACTA process was shrouded in secrecy, with only the occasional leak bringing plans to light. Wikileaks cables confirmed that the secrecy was viewed as a serious problem in many participant countries. In fact, even as most countries supported greater transparency and the release of draft texts, the U.S. steadfastly refused, using transparency as a bargaining chip to extract concessions from other negotiating partners. In addition to the transparency problems during the negotiations, the express exclusion of many countries from the process raises real fears that they will face increased pressure to meet ACTA standards in the years ahead.

Given the ongoing concerns, the big question now is whether much can be done. The majority of ACTA countries have signed the agreement, but it will only take effect once five countries have formally implemented and ratified it. That is not expected until at least May 2013, opening the door to stopping the agreement from taking effect. While there are global initiatives such as the AccessNow petition, much of the activity has shifted to specific countries or regions:

• Europe is home to the most active anti-ACTA effort since there is still a possibility that the European Parliament may reject the treaty. There remain serious doubts about whether ACTA is consistent with the EU Acquis.  Learn more about what can be done at La Quadrature du Net, EDRI, the Open Rights Group, and FFII.
• In Canada, the Department of Foreign Affairs is conducting an open consultation on ACTA. Email your comments to the department or write Consultations and Liaison Division (BSL), Anti-Counterfeiting Trade Agreement (ACTA), Foreign Affairs and International Trade Canada, Lester B. Pearson Building, 125 Sussex Drive, Ottawa, Ontario, K1A 0G2. A March 2011 Standing Committee on Canadian Heritage report recommended limiting Canada's ACTA commitments.
  
• In the U.S., much of the focus is on whether ACTA must be approved by Congress. Senator Wyden has raised questions about the issue. KEI has extensive coverage of the U.S. perspective on ACTA.
• In Australia, the Joint Standing Committee on Treaties is accepting submissions on ACTA until January 27, 2012 (Kim Weatherall's submission here). Australia tabled the agreement in Parliament on November 21, 2011 and has taken the position the agreement will not require any legislative changes. The Australia Productivity Commission recommended in 2010 that Australia not include IP provisions in trade agreements.
  
• The New Zealand government has posted information on ACTA on its website.
• Switzerland and Mexico have yet to sign ACTA.

The dangers associated with ACTA are not limited to this particular agreement. The agreement opens the door to further secretive negotiations, such as the Trans Pacific Partnership, which contain extensive IP provisions that extend beyond ACTA.  The SOPA battle was a big win for those concerned with balanced copyright and the open Internet, but it is by no means the end of the fight.

There are two things particularly noteworthy about the report. The first is that the industry is suddenly promoting statistics that show Canada is actually a leader when it comes to online music sales, noting that Canada is the 6th largest market for recorded music in the world, ranking 6th for digital sales and 7th for physical sales (it might have also noted the digital sales have grown faster in Canada than the U.S. for the past five consecutive years). It also cites new survey data confirming that young Canadians are music buyers, which it says leads to the conclusion that Canada "is a digital greenfield opportunity." This is huge shift from an industry association that a few years ago likened Canada to the HBO series Deadwood.

The second is that the guide provides further evidence of the creation of a digital music market in Canada without digital lock legislation. The guide points to download services such as iTunes, Hip Digital, Puretracks, Archambault, HMV Digital, 7Digital; non-interactive streaming services such as Galaxie Mobile and Slacker Radio; on-demand streaming such as Rdio, BBM Music, and Zune Music Pass; and streaming music videos such as YouTube and Vevo. Some of these services use digital locks, some don't. The experience to date demonstrates that establishing success online music services is a business issue, not a legal one. The claim that a balanced approach to digital locks would harm these businesses (when all these services have launched with no legal protection for digital locks) is undermined by the industry's own data, which points to an investment opportunity and the 6th ranked market in the world.

Viacom lost at the trial level in 2010, but has appealed the decision. The SOPA-style enabler provision under Bill C-11 that the content industry is demanding  would include six factors for a court to consider. Contrast the Bill C-11 factors that a court may consider with Viacom's claims in its appellate brief:

Bill C-11 Enabler Provision Factors	Viacom's Claims
whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement	"YouTube’s founders built an integrated media entertainment business, in the district court’s words, by “welcom[ing] copyright-infringing material being placed on their website.”  That copyrighted material was “attractive to users” and “enhanced defendants’ income from advertisements,” enabling YouTube’s founders to sell the business to Google for $1.65 billion."
whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement	"Almost immediately after YouTube came online, YouTube became aware of widespread infringement on its site.  And it was the copyrighted videos—not home movies—that people flocked to YouTube to see."
whether the service has significant uses other than to enable acts of copyright infringement	"In their written presentation to Google’s board and senior management, Google’s financial advisors stated that 60 percent of YouTube’s views were “premium” —i.e., copyrighted—and only 10 percent of the premium videos were licensed."
the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so	"Dunton similarly put a stop to efforts to implement software that would notify copyright owners when infringing videos were uploaded.  Even though a YouTube engineer said that implementing an automated anti-infringement tool to alert copyright owners when suspected  infringing content was uploaded “isn’t hard” and would “take another day or [weekend],”  Dunton ordered the engineer to “forget about the email alerts stuff” because “we’re just trying to cover our asses so we don’t get sued.”"
any benefits the person received as a result of enabling the acts of copyright infringement	"Unable to compete with YouTube’s pirated content, in late 2006, Google bought YouTube for $1.65 billion."
the economic viability of the provision of the service if it were not used to enable acts of copyright infringement	"As early as June of 2005, YouTube’s Internet service provider complained that YouTube was violating its user agreement by, YouTube founder Steve Chen believed, “hosting copyrighted content.”  But Chen resolved that YouTube was “not about to take down content because our ISP is giving us shit.”  And, in emails with the other founders, he later remarked “we need to attract traffic. . . .  [T]he only reason why our traffic surged was due to a video of this type”—i.e., copyrighted and unauthorized"

This is obviously one side of the story and is an appeal from a decision that ruled in Youtube's favour, concluding the site is protected by the safe harbours found in the DMCA. Moreover, the same kind of suit launched against Veoh, another online video site, recently also failed (though it cost the founder his company).

Yet reading the Viacom claims makes it clear that applying its arguments to a SOPA-version of the Bill C-11 enabler clause (which content groups want expanded to include operating or inducing infringement) could create a huge chill in the investment and technology community in Canada. Online video sites, cloud computing sites, and other online services may look at the Bill C-11 and fear that even a lawsuit could create massive costs, scare away investors, and stifle new innovation. Indeed, a recent study by Booz & Company found this to be a very real problem, with a large majority of the angel investors and venture capitalists saying they will not put their money in digital content intermediaries if governments pass tough new rules allowing websites to be sued or fined for infringing digital content posted by users. The U.S. has dropped SOPA, but now incredibly Canada may consider the very provisions that causes investors to become skittish.

The Business Coalition for Balanced Copyright, which includes leading technology, telecom, retail, and Internet companies, has already expressed concern with the Bill C-11 digital lock rules. Turning Bill C-11 into a Canadian SOPA would only make matters worse, creating a legal framework that would harm Canadian business and consumers.

In 2007, tens of thousands of Canadians used Facebook to register their concern with impending copyright legislation (I launched one of the main groups involved). In response, the government delayed introducing the legislation by six months, during which it added several provisions aimed at pacifying the public criticism.

In 2009, thousands of people in New Zealand launched their own blackout campaign against proposed "three strikes and you're out" copyright legislation that would have led to Internet users losing access based on three allegations of infringement. Users blacked out websites and profiles on Facebook and Twitter. The New Zealand government responded by withdrawing the legislation.

The similarities between the SOPA protest and digital activism in other countries does not end there. In virtually all cases, opponents dismiss protesters as pirates or pawns (or in the case of Canadian Heritage Minister James Moore, "radical extremists") who lack a genuine understanding of the issues.

Yet the Motion Picture Association of America is happy to trot out well-known movie stars with little copyright law familiarity since they are guaranteed to garner attention. Moreover, during earlier SOPA hearings, several politicians seemed to take pride in their lack of technical knowledge and experience.  

The MPAA called the protests "an abuse of power" by platforms that serve as gateways to information, a particularly rich claim coming from a group that once threatened to delay screening movies in Canada unless it passed new copyright rules and still requires its customers to sit through unskippable anti-piracy messages at the beginning of movies on DVDs or at the theatre.

Most troubling were lobbyists who lamented the politicians' shifting policy positions due to the popular protest, as if their own preferred approach of spending millions on campaign contributions is somehow a more democratic method of lawmaking.

It may be tempting for SOPA protesters to declare victory, but history teaches that political wins are rarely absolute.  The current Canadian legislation, Bill C-11, is much more balanced than the 2007 proposal, but the digital lock provisions that sparked the initial protest remain largely unchanged. In New Zealand, the government later introduced a more balanced bill with greater safeguards, but the prospect of terminating Internet access was not completely eliminated.

SOPA appears to be headed for the dustbin, but successor U.S. legislation is sure to follow. A political consensus on anti-piracy legislation will eventually emerge, but the day the Internet fought back will remain the elephant in the room for years to come.

For example, the industry wants language to similar to that found in SOPA on blocking access to websites, demanding new provisions that would "permit a court to make an order blocking a pirate site such as The Pirate Bay to protect the Canadian marketplace from foreign pirate sites." Section 102 of SOPA also envisioned blocking of websites:

A service provider shall take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site (or portion thereof) that is subject to the order, including measures designed to prevent the domain name of the foreign infringing site (or portion thereof) from resolving to that domain name’s Internet  Protocol address. Such actions shall be taken as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order.

The music industry also wants Internet providers to be required to adopt a termination policy for subscribers that are alleged to be repeat infringers. According to the industry document:

To incent service providers to cooperate in stemming piracy by requiring them to adopt and reasonably implement a policy to prevent the use of their services by repeat infringers and by conditioning the availability of service provider exceptions on this being done.

This demand would move Canada toward the graduated response policy that could result in loss of Internet service for Internet users. There is no indication in the music industry document of due process or even proof of infringement.

Several lobby groups also want language similar to that found in the infamous Section 103 of SOPA. That provision, which spoke of sites "primarily designed or operated for the purpose of...offering goods or services in a manner that engages in, enables, or facilitates" infringement, raised fears that it could be used to shut down mainstream sites such as YouTube.

According to the music industry document, Bill C-11's "enabler provision" should be expanded to include "services that are primarily operated to enable infringement or which induce infringement." Those demands are echoed by the Entertainment Software Association of Canada, which called on the government to "amend the enabling provision to ensure that it applies to services that are "designed or operated" primarily to enable acts of infringement." Both groups also want statutory damages added to the enabler provision so that liability can run into the millions of dollars for a target website.

Just as there are questions whether SOPA is even needed in the U.S. (the takedown of Megaupload suggests that current laws are effective), the same is true with the enabler provision in Bill C-11, given that the music industry is already suing IsoHunt, the Canadian-based torrent search site, using current law. The expansion of the enabler provision to include sites that operate to enable or induce infringement could extend far beyond so-called "pirate sites", since many user generated content sites (such as YouTube) and cloud-based service sites can be said to enable or induce infringement, particularly in a country like Canada that does not have a fair use provision.

As for the government's plans, C-11 committee member Dean Del Mastro specifically referenced changes to the enabler provision in a recent interview about potential changes and there are rumours that the U.S. government is pushing the Canadian government to toughen the enabler provision (while keeping the digital lock rules unchanged). That suggests that just as the U.S. is moving away from SOPA in its own laws due to the political uprising against it, the Canadian government may be headed toward a similar quagmire as the U.S.-backed lobby groups lead it down a politically risky path.

All of this raises the question of whether the government's approach in Bill C-11 is consistent with this trend. The overall talking points certainly are as the government talks about letting the market rule, protecting creators by targeting piracy, and giving consumers new freedoms. The devil is in the details, however.

Bill C-11 includes provisions to target infringement (the enabler provision) and shifts toward market-focused solutions with the creation of new consumer exceptions that ensure those rights are built into the price of the products, not subject to additional levies. The bill is also cognizant of the importance of Internet freedom with a notice-and-notice approach to Internet provider liability and a consistent rejection of proposals that could lead to terminating Internet service.

The outlier, however, remain the digital lock rules, as was noted in this National Post op-ed.  Far from adopting a market-focused approach, the C-11 digital lock rules are among the most restrictive in the world with the government intervening in the market by creating incentives to adopt digital locks. The government message to business is clear: with digital locks you get all your copyright rights plus you get to override consumer rights such as fair dealing, time shifting, or making backup copies. For consumers, the loss of property rights is enormously troubling (and one reason for doubts about the constitutionality of this aspect of the bill). The "right" approach on this issue is to avoid meddling in the market by linking circumvention of digital locks to actual copyright infringement. That would provide legal protection for digital locks but ensure that the copyright balance (including copyright exceptions) is not lost in the process.