The New York Times has a feature story on ACTA today that includes comments from an EU official rejecting a single solution to Internet issues as well as comments from a Swedish official calling for the release of the draft text. Feb.08/10Comments (2)
The UK Digital Economy Bill is facing mounting criticism, as an influential group of MPs has expressed concern the bill may violate human rights. Feb.08/10Comments (0)
Finnish Member of the European Parliament Heidi Hautala has added her voice to the concerns over ACTA, calling for greater transparency. Feb.08/10Comments (0)
The British Library plans to make more than 65,000 19th century works of fiction available as free downloads for the public this spring. Feb.08/10Comments (0)
Building on earlier disclosures from Sweden and New Zealand, the Australian press is reporting that government officials say they oppose inclusion of three strikes in ACTA and confirm that talks on the secret copyright treaty could extend into 2011. Feb.04/10Comments (2)
The Washington Post's Rob Pegoraro has a piece on ACTA, expressing concern about the secret copyright treaty and fears that things may get worse. Feb.04/10Comments (0)
The National Post's John Ivison writes about the Conservatives' plan to borrow heavily from the 2008 Competition Policy Review Panel in the forthcoming Speech from the Throne. The panel report included recommendations for copyright reform, which focused on the need for balance in rewarding creators and stimulating competition and innovation. Feb.04/10Comments (1)
The Guardian reports that the UK government's bid to push the digital economy bill through has been dealt another setback after Siôn Simon, the creative industries minister appointed to pilot the legislation through parliament for the Department for Culture, Media and Sport, announced he is resigning an MP. Feb.04/10Comments (0)
The European Commission has posted a response to one of the many questions raised by members of the European Parliament about ACTA. The EC seeks to pacify the ACTA concerns by arguing that the treaty will be limited in scope and is targeted at commercial activities:
The Commission can inform the Honourable Member that the Anti-Counterfeiting Trade Agreement (ACTA) will be in line with the body of EU legislation, which fully respects fundamental rights and freedoms and civil liberties, such as the protection of personal data. This includes the Intellectual Property Rights' relevant aspects of the Telecoms package.
ACTA should not contain measures restricting end-users’ access to the internet that would not be appropriate, proportionate and necessary within a democratic society and without a prior, fair and impartial procedure.
It is the Commission's view that ACTA is about tackling large scale illegal activity, often pursued by criminal organisations, that is causing a devastating impact on growth and employment in Europe and may have serious risks to the health and safety of consumers. It is not about limiting civil liberties or harassing consumers.
Faced with mounting criticism over ACTA secrecy, officials from both the U.S. and the EU are speaking out. In a letter to the editor at the Financial Times, the USTR's Stanford McCoy rejects the transparency concerns, claiming:
"Far from keeping them secret, governments participating in these negotiations have sought public comments, released a summary of issues under discussion, and enhanced public engagement."
Meanwhile, an EU official told EurActiv.com that media reports have oversimplified ACTA and that information has been provided to the European Parliament "whenever possible." The EU official declined to be named due to a non-disclosure agreement.
On the other hand, UK Minister of State, Department for Business, Innovation and Skills David Lammy provided the House of Commons with his government's official position on ACTA secrecy:
It is current UK policy on the Anti-Counterfeiting Trade Agreement to seek the agreement of our negotiating partners to publish the draft text. However, it is the practice in trade negotiations that working documents are not disclosed without the consent of all the negotiating parties. Not all parties currently agree to the release of the Anti-Counterfeiting Trade Agreement (ACTA) draft text. My officials continue to press for greater transparency with our negotiating partners.
Not to be forgotten, Bridges Weekly reports on mounting concerns in the developing world over ACTA. While an official from the Chamber of Commerce argues that it is not desirable to address ACTA issues at WIPO, a developing country trade diplomat acknowledges that the developing world will face pressure to adopt ACTA-like provisions and that the process sounds like "TRIPs-plus-plus-plus."
Nielsen Soundscan has just released the Canadian music sales figures for 2009. Notwithstanding the regular claims that the Canadian digital music market cannot develop without copyright reform, the Canadian market grew faster than the U.S. market for the fourth consecutive year. As the chart below demonstrates, digital music sales have grown faster in Canada than in the U.S. in every year since 2006:
While this does not suggest that the market is thriving - a down economy with more competition for the entertainment dollar it is a tough market - it does confirm yet again that attempts to link copyright reform to the development of a Canadian digital market are not borne out by the facts. Indeed, Canada has consistently grown faster than the United States (from an admittedly lower starting point given that digital music stores arrived later in Canada).
Moreover, as I pointed out last summer, the IFPI's global data further supports the conclusion that the Canadian digital music market is not the laggard that some would have the public believe. As of last year, Canada's digital market stood 7th worldwide, while ranking 6th for all recorded music - in other words, about what you would expect. Of the top 20 global markets for recorded music, the IFPI said that Canada ranked 5th for the percentage of digital sales.
Indeed, digital music sales as a percentage of total sales in Canada is ahead of every major European country. The U.S. may lead Canada (though growing at a far slower rate), but the IFPI reported that Canada is ahead of France, Britain, Spain, Belgium, Italy, Germany, Switzerland, the Netherlands, Austria, Sweden, Czech Republic, Finland, Greece, Hungary, Norway, Poland, Portugal, and Russia. Canada also leads countries such as Australia, New Zealand, Hong Kong, Singapore, Taiwan, Mexico, Argentina, Brazil, and South Africa. The global music market may be facing difficult times, but the industry's own data confirms that placing the blame on Canadian copyright laws is quite clearly misplaced.
Australian Internet users are today celebrating a landmark decision in which an Australian court ruled against the film industry in their lawsuit against iiNET, Australia's third largest ISP. The industry had asked the court to hold the ISP liable for infringing BitTorrent activities of its users. The court soundly rejected that demand, holding that the ISP could not be seen to have authorized the infringement.
While the authorization analysis is unquestionably the foundation of the decision, there is a detailed, must-read section on subscriber termination schemes, better known as three strikes and you're out (paragraphs 425-442). In it, Justice Dennis Cowdroy explains why such schemes are far more complicated than is often claimed and are simply not reasonable in many circumstances.
First, Justice Cowdroy confronts claims that ISPs terminate subscribers for non-payment of accounts, so why not for copyright infringement: Read More ...
Regardless of the actual quality of the evidence gathering of DtecNet, copyright infringement is not a straight ‘yes’ or ‘no’ question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system. The respondent had no such guidance before these proceedings came to be heard. The respondent apparently did not properly understand how the evidence of infringements underlying the AFACT Notices was gathered. The respondent was understandably reluctant to allege copyright infringement and terminate based on that allegation. However, the reasonableness of terminating subscribers on the basis of non-payment of fees does not dictate that warning and termination on the basis of AFACT Notices was equally reasonable. Unlike an allegation of copyright infringement, the respondent did not need a third party to provide evidence that its subscribers had not paid their fees before taking action to terminate an account for such reason.
After rejecting claims that Australian copyright law envisages termination as part of that law's safe harbour provisions, Justice Cowdroy turns to claims that ISPs have the technical capability to cut off access:
One need only consider the lengthy, complex and necessary deliberations of the Court upon the question of primary infringement to appreciate that the nature of copyright infringements within the BitTorrent system, and the concept of ‘repeat infringer’, are not self-evident. It is highly problematic to conclude that such issues ought to be decided by a party, such as the respondent, rather than a court. Copyright infringement is not a simple issue. Such problems as identified are not insurmountable, but they do weigh against a finding that the respondent could conclusively decide that infringement had occurred and that it had the relevant power to prevent by warning, suspension or termination of subscriber accounts, even if it had the technical capability to do so. Even if feasible, such a scheme would likely lead to significant expense incurred by the respondent, as was alluded to by Mr Malone in his second affidavit. Of course significant expense was likely to have been incurred by the respondents in Kazaa, but that was in the context of those respondents having provided the ‘means’ of infringement. The respondent has not done so in these proceedings, and thus the expense and complexity of the imposition of responsibility for a notice and termination scheme on them manifestly militates against the conclusion that such scheme is a relevant power to prevent.
All of these leads to an unambiguous conclusion from the Court:
The Court does not consider that warning and termination of subscriber accounts on the basis of AFACT Notices is a reasonable step, and further, that it would constitute a relevant power to prevent the infringements occurring. The respondent did not create the ‘means’ to infringe copyright. It was the constituent parts of the BitTorrent system which has given rise to the infringements. Consequently, it cannot be incumbent upon the respondent to stop the infringements. Even if it was incumbent upon the respondent, that does not lead to the conclusion that it was a reasonable step for it to take action.
...
Obviously termination of the subscriber accounts would constitute a step that would prevent the person or persons from infringing (at least with that ISP), but it would also prevent that person or persons from using the internet for all the non-infringing uses to which the internet may be put and to which they have contracted with the respondent and provided consideration. Given that Wilcox J had no desire to order the respondents in Kazaa to shut down their system where he found the predominant use was to infringe copyright, it would seem that termination of accounts in the circumstances of unproven and sporadic use, at least absent judicial consideration of the extent of the infringement on each account, would be unreasonable. The words of Higgins J in Adelaide Corporation are apposite. While termination of accounts would stop the infringement, it would do much more and in the circumstances it would not be reasonable. Consequently, warning and termination/suspension does not relevantly constitute a power to prevent infringement on the part of the respondent.
When combined with today's reports that Australia has opposed three strikes as part of the ACTA talks, there is considerable good news on the copyright front coming from down under.
With the conclusion of the 7th round of ACTA negotiations in Guadalajara, Mexico last week, participating countries issued the now-standard boilerplate statement that merely repeats the agenda items and provides no real insight into the progress of the talks. While the statement is does little to advance the desire for greater transparency, reports from New Zealand and Sweden shed far more light on where things stand. The key points:
The U.S. proposal for Internet enforcement has received considerable public attention, yet there are three proposals on the table that address digital enforcement and safe harbours (ie. intermediary liability). One of New Zealand's negotiators reports that a fourth proposal is currently being formulated and that it could take six more months before this chapter is settled.
In addition to safe harbour rules, the talks in Mexico also addressed DMCA-style issues such as anti-circumvention legislation.
The Europeans continue to push for the extension of ACTA beyond copyright and trademarks to also include patents.
Some countries have become more open to sharing ACTA documents in response to transparency concerns, but there remain some who insist that the discussions remain strictly confidential. Both New Zealand and Sweden are on record as supporting greater transparency.
In recent years, Canadians have become increasingly accustomed to hearing about Internet success stories elsewhere with fewer examples of homegrown initiatives. However, as my weekly technology law column (Toronto Star version, homepage version) discusses, an unlikely Canadian online video success has emerged recently that has not received its due - the National Film Board of Canada’s Screening Room.
The NFB may never replace YouTube in the minds of most when it comes to Internet video, but a series of innovations have highlighted the benefits of an open distribution model and the potential for Canadian content to reach a global audience online.
Last year, just months before the NFB celebrated its 70th anniversary, it launched the NFB Screening Room, an online portal designed to make its films more readily accessible to Canadians and interested viewers around the world. To meet its objective, it committed to be as open, transparent, and accessible as possible, including making the films freely available and embeddable on third party websites.
In January 2009, the site started with 500 films. Today, the number of available films has nearly tripled, with almost 1,500 films, clips, and trailers. The growing selection has been accompanied by a massive increase in audience. There have been 3.7 million online film views over the past year - 2.2 million from Canada and 1.5 million from the rest of the world. That number is set to continue to grow as daily views have jumped from 3,000 per day in January 2009 to more than 20,000 film views per day in January 2010.
The site also uses mobile technology to increase public access and exposure to Canadian films. In October 2009, the NFB launched an iPhone application that has been downloaded more than 170,000 times and led to more than 500,000 film views on the ubiquitous mobile device.
Interestingly, the NFB reports the most popular viewing time is in the evening hours, suggesting that watching a film online is an effective substitute for conventional television programming.
The NFB also rolled out new participative initiatives. For example, it launched an "open content" project called GDP, an interactive one-year effort to document the economic crisis. The NFB invited Canadians to submit their own videos discussing the effects of the economic downturn, leading to more than 25 videos along with hundreds of photos and text comments.
The NFB success story is noteworthy for two reasons beyond the impressive statistics. First, the project is instructive from a public policy perspective. As the NFB’s content manager recently noted, the Screening Room “puts the films back in front of the people who paid for them in the first place - Canadian taxpayers.”
That philosophy ought to be emulated by other publicly funded cultural bodies. For example, CBC.ca recently began promoting an online licensing system that charges sites as much as $250 per month to embed a single article on a website. While the desire for additional revenue is understandable, the goal for a publicly funded body surely must be to make public access the priority, rather than to garner small incremental revenues.
Second, the NFB has demonstrated the potential of the Internet and new media to attract new audiences for Canadian content. The old regulatory models premised on scarcity that led to Canadian content requirements are disappearing quickly, replaced by a world of abundance in which artificial barriers do little to keep content out.
As the NFB recognized, remaining relevant in that world requires ensuring your work is accessible as possible. While there are unquestionably risks, there are tremendous potential benefits for Canadian creators and the export of Canadian culture.
The 7th round of ACTA negotiations will conclude around lunch time today in Mexico. If past meetings are any indication, a few hours later the participating countries will issue a bland statement thanking the host Mexican government, discussing the progress on civil enforcement, border measures, and the Internet as well as noting the transparency discussions and the continued desire to address the issue. The release will then conclude by looking forward to the next meeting in Wellington, New Zealand in April.
As this five part series (Part One on substance, Part Two on leaks, Part Three on transparency, and Part Four on local implementations) demonstrates, however, there are ongoing concerns with both the process and substance of ACTA. From a process perspective, the negotiations remain far more secretive than other international agreements. From a substantive viewpoint, ACTA could result in dramatic reforms in many participating countries. Countering the momentum behind ACTA will require many to speak out.
This admittedly feels like a daunting task given the powerful interests that are committed to seeing ACTA through. That said, many have begun to speak out. This last post starts with links to a sampling of the politicians and groups that have already made ACTA one of their issues: Read More ...
Every individual concerned with ACTA can also speak out. Write to your local MP or national leader or participate in the specific activities sponsored by some of the organizations listed above. These include the EFF ACTA Action Alert, the effort to encourage UK MPs to support the cross-party motion for ACTA transparency, and the signing of the A2K ACTA Petition.
Questions about ACTA typically follow a familiar pattern - what is it (Part One of the ACTA Guide), do you have evidence (Part Two), why is this secret (Part Three), followed by what would ACTA do to my country's laws? This fourth question is the subject of this post, Part Four of the ACTA Guide. The answer is complex since the impact of ACTA will differ for each participating country: some will require limited reforms, others very significant reforms, and yet others (particularly those not even permitted to participate) complete overhauls of their domestic laws.
That is not the answer that the participating countries have been providing. Instead, most have sought to dampen fears by implausibly claiming that ACTA will not result in any domestic changes in their own country. With that in mind, we get:
the European Union stating "ACTA will not go further than the current EU regime for enforcement of IPRs"
the USTR maintaining that ACTA will not rewrite U.S. law
Australia's DFAT confirming they do not expect to see major domestic changes to Australian law as a result of the ACTA
New Zealand stating "ACTA will not change existing standards"
Canadian Industry Minister Tony Clement assuring the House of Commons that ACTA will be subservient to domestic rules
Of course, if all of this is true, skeptics might reasonably ask why ACTA is needed at all. The truth is that ACTA will require changes in many countries that ratify the agreement. The EU Commissioner-designate for the Internal Market, Michel Barnier, recently acknowledged precisely that during hearings in Brussels. Meanwhile, U.S. lobby groups have stated that they view ACTA as a mechanism to pressure Canada into new copyright reforms.
While Canadian officials may put on a brave face regarding the prospect of ACTA-inspired domestic reforms, the reality is that behind-the-scenes this has been a major concern for officials since before ACTA was officially unveiled. I recently obtained under the Access to Information Act a copy of a response to the U.S. ACTA discussion paper from 2007 written by Doug George, who until recently led Canada's delegation on ACTA at DFAIT. George's response takes great pains to emphasize the differences between countries and the need to take this into account:
While there may be a need to coordinate our efforts at the international level to fight counterfeiting and piracy, including through the negotiation of an ACTA, countries have implemented different systems and legislation to address this issue. This needs to be taken into account in our discussions. For instance, the role of governments versus rights holders in enforcing IPR can vary greatly among the various systems, and specific systems for implementation have developed in different directions.
Canada's fears have quite obviously been realized as the vision of ACTA proponents is a one-size fits all solution based on the U.S. model of IP enforcement. This will, by its very definition, require domestic change in many countries.
As for the specifics of domestic reforms, they depend on the country. Countries without statutory damages would need to add those to their laws. Countries without DMCA-style anti-circumvention rules or a notice-and-takedown system would require those changes. Countries without anti-camcording rules or new border enforcement measures or a host of other ACTA-related provisions would need to address those concerns. There has been some preliminary analysis of possible changes in various countries. These include:
Not to be forgotten are those countries that are not part of the ACTA discussions. The exclusion of many major trading partners (and the alleged leading sources of counterfeit products) are a major story since those countries will likely also face pressure to implement ACTA despite not having had the opportunity to participate in the talks. I discussed that issue - and the need for developing countries to demand a seat at the table - last year in this piece.
Part Three of the ACTA Guide (Part One on the agreement itself, Part Two on the official and leaked documents [update: Part Four on local effects]) focuses on the issue that has dogged the proposed agreement since it was first announced - the lack of transparency associated with the text and the talks. As yesterday's public letter from NDP MP Charlie Angus and the UK cross-party motion highlight, elected officials around the world have latched onto the transparency issue and demanded that their governments open ACTA to public scrutiny. Reviewing the ACTA transparency issue involves several elements: the public concern with ACTA secrecy, the source of the secrecy, and the analysis of whether ACTA secrecy is common when compared to other intellectual property agreements.
1. The Public Concern
Over the course of the two years since ACTA was first publicly announced (it was secretly discussed for about two years before the public unveiling), there have been repeated calls from elected officials and public interest groups to address the transparency concerns. In fact, each time portions of the ACTA text leak, the concerns grow stronger. For example, a sampling of the global call from politicians for greater transparency includes:
Moreover, the European Parliament has voted for a proposal to bring more transparency and public access to documents. The resolution includes specific language about the Anti-Counterfeiting Trade Agreement. In particular, it states:
Acting in accordance with Article 255(1) of the EC Treaty, the European Commission should immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available.
The justification for the language is:
The Anti-Counterfeiting Trade Agreement (ACTA) will contain a new international benchmark for legal frameworks on what is termed intellectual property right enforcement. The content as known to the public is clearly legislative in character. Further, the Council confirms that ACTA includes civil enforcement and criminal law measures. Since there can not be secret objectives regarding legislation in a democracy, the principles established in the ECJ Turco case must be upheld.
In addition to elected officials and parliamentary resolutions, numerous public interest groups from around the world have joined the call for greater ACTA transparency (current joint declaration is one example). Business groups have also attacked the secrecy associated with the talks.
2. The Sources of ACTA Secrecy
Identifying the sources of ACTA secrecy are alternately easy and difficult. The confidentiality statement that forms the basis of ACTA confidentiality has been leaked and makes it clear that the U.S. set the initial terms of secrecy. A more detailed discussion can be found in several documents responding to access to information/freedom of information requests. For example, the Declaration of Stanford McCoy of the USTR on ACTA disclosure of documents provides the U.S. perspective, while European Council response on ACTA transparency and disclosure of documents provides the EU view (second EU document here).
While those are the official positions, some countries have provided limited access to "ACTA Insiders." The U.S. made the Internet chapter available under non-disclosure agreement to 42 ACTA insiders in 2009. Canada intended to create an insider advisory group, but abandoned those plans after details of the possible members was obtained under the Access to Information Act and reported in the press.
More difficult is to identify who currently supports ACTA secrecy. According to an article in the EU Observer, roughly half of the 27 EU Member States support increased ACTA transparency, suggesting that making content publicly available would increase public confidence. There have been similar reports in the UK, New Zealand, Australia, and Canada. That still leaves the Asian countries and the U.S. as potential holdouts (USTR head Ron Kirk has reportedly said that countries would walk away from the treaty if the text were made available).
3. Is ACTA Secrecy Standard?
The third major issue is whether the ACTA secrecy is commonplace. Last fall, the ACTA partners released a joint statement arguing that "it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation." Yet a closer examination of similar international IP negotiations reveals that the ACTA approach is not standard.
U.S. NGO groups have made a strong case for how ACTA's lack of transparency is out-of-step with many other global norm setting exercises. With regard to international fora, they note that the WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law, and an assortment of other conventions have all been far more open than ACTA. For example, the WIPO Internet treaties, which offer the closest substantive parallel to the ACTA Internet provisions, were by comparison very transparent:
The two WIPO Internet Treaties (WCT and WPPT) were negotiated in a completely open meeting at the Geneva Convention Center. The public was allowed to attend without accreditation. The draft texts for the WCT and the WPPT were public, and the U.S. government requested comments on the draft texts, which were available, among other places, from the U.S. Copyright Office.
Two other documents offer similar reviews of the transparency of negotiation documents and opportunities for public participation. Moreover, Jamie Love recently posted a comparison of the level of transparency during the FTAA negotiations with the ACTA talks. Several drafts of the FTAA agreement were released to the public as the negotiations were ongoing.
The inescapable conclusion is that the ACTA approach is hardly standard. Rather, it represents a major shift toward greater secrecy in the negotiation of international treaties on intellectual property in an obvious attempt to avoid public participation and scrutiny.
NDP MP Charlie Angus used the launch of the ACTA talks in Mexico to issue a four-page letter to International Trade Minister Peter Van Loan demanding answers on ACTA. The letter challenges the government's secretive approach on ACTA and delves into a wide range of substantive issues including the prospect of mandated DMCA-style legislation. Angus also held a press conference and issued a release on the need for more openness on the ACTA talks.
