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ACTA Negotiations, Day Two: What’s On Tap

As ACTA negotiators head into day two of the Seoul, Korea meetings, the global response to the Internet provisions in the chapter (the issue from day one) has been remarkable.  Articles and postings from around the world (Germany, Italy, Sweden, UK, New Zealand, the Netherlands, U.S.Germany, Italy, Hungary, the Netherlands), coverage from some of the most popular websites (Gizmodo, ReadWriteWeb, TorrentFreak, BoingBoing, Slashdot), as well as expert commentary (EFF, Electronic Frontier Australia) has been swift and universally concerned with ACTA.

According to the official agenda, in a few hours talks will continue on the Internet provisions and then move into the criminal provisions chapter.  I discussed details of the Internet chapter yesterday, in a post that highlights the creation of a Global DMCA that would severely limit the ability for signatories to use the flexibility found in the WIPO Internet treaties.  Moreover, the provisions would pave the way for a globalized three-strikes and you're out system, as ISP safe harbours would be premised on policies to terminate subscribers in appropriate circumstances. 

It is worth highlighting the ongoing criminal provisions as well.  As previously leaked, the U.S. and Japan supplied the initial text for this chapter.  Their proposal included:

  • extend criminal enforcement to both (1) cases of a commercial nature; and (2) cases involving significant willful copyright and trademark infringement even where there is no direct or indirect motivation of financial gain.  In other words, non-commercial infringement could lead to criminal penalties
  • each country would be required to establish a laundry list of penalties – including imprisonment – sufficient to deter future acts of infringement. The specific proposed language was "include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistent with a policy of removing the monetary incentive of the infringer."
  • trafficking in fake packaging for movies or music would become a criminal act. The fake packaging provision provided:
Each Party shall provide for criminal procedures and penalties to be applied, even absent willful trademark counterfeiting or copyright or related rights piracy, at least in cases of knowing trafficking in:
(a)    counterfeit labels affixed to, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany the following:
(i)    a phonogram,
(ii)     a copy of a computer program or other literary work,
(iii)    a copy of a motion picture or other audiovisual work,
(iv)    documentation or packaging for such items; and
(b)     counterfeit documentation or packaging for items of the type described in subparagraph (a); and
(c)    illicit labels affixed to, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany items of the type described in subparagraph (a).
  • Criminalization of unauthorized camcording:
Each Party shall provide for criminal procedures and penalties to be applied against any person who, without authorization of the holder of copyright or related rights in a motion picture or other audiovisual work, knowingly uses an audiovisual recording device to transmit or make a copy of or transmits to the public the motion picture or other audiovisual work, or any part thereof, from a performance of the motion picture or other audiovisual work in a motion picture exhibition facility open to the public.

On top of these provisions, there are full chapters on civil enforcement (including mandatory statutory damages) and border measures (including blocking shipments and new search powers).  This is why I concluded yesterday that there is no bigger IP issue today than the Anti-Counterfeiting Trade Agreement being negotiated behind closed doors this week in Korea.

27 Comments

  1. Karl Sigfrid says:

    Member of Parliament, Sweden
    Prof Geist,

    Thank you for keeping us updated throughout the process! Without you as a source of information, I would not have a clue about current ACTA developments.

  2. Is there any way we can affect the out come of this decision?

  3. Our silly cops here are concerned with trivial things like gang murders, armed holdups, stabbings, crystal meth, tracking rapists etc. I’m sure they would really appreciate being diverted to hunt down unlicensed Mickey Mouse dolls, and infringing mp3s of the latest Metallica album.

  4. The EU does not have competence to sign the criminal part
    The EU does not have competence to sign the criminal part. Criminal sanctions are outside of the scope of competences the EU.

    What the states could do is to sign the treaty on their own.

  5. A trade treaty should not over-ride the democratic process for each of the the countries involved. Right now this threaten the transparency of our government and is worse than an attack on our constitution by an outside economic force.

  6. Whoa!!!
    So if I print a custom label to attach to a cd case holding my fair use backup copy of a piece of software/whatever, I am guilty of a crime now?

    The stench of this is making my eyes water.

  7. Should not, could not, it doesn’t matter any more. Who would have thought the EC would override 88% of the parliament with three strikes. It’s unseemly. omg. This is war. IP is the last trick ‘the west’ (Europe, why did you go this way?) has in its backpack. Get used to it, get over it and move.

  8. Encryption
    Encrypted data transfers are the answer to increased packet sniffing surveillance. There is no way to stop us! They need to understand that they need to work with us and not against us.

  9. Sort of Good News
    The more draconian they make this thing the less chance it has of getting ratified. For example, the three strikes provisions have already shaken governments. So as scary as it looks, it is actually good news that it is so extreme.

  10. where are the names? says:

    just doe snot make sense
    ISPs should be held accountable because they facilitate file sharing by carrying information.
    Microsoft facilitates because they provide the operational sytem.
    Intel for the processor.
    Sony for camcorders.

    You are allowed to think this does not make sense.
    It is not the one that carries information that should be held accountable.

    What about all that information that ISPs carry? Interesting.
    I would love to control that. But first, I would try to invent a good excuse.

    I want names.

    None of what I read gave me names, except here:

    White House shares the ACTA Internet text with 42 Washington insiders, under non disclosure agreements
    http://keionline.org/node/660

    No names, a lure, and lots of people speaking about what they can’t see and don’t know.

  11. The basic facts of how these negotiations are done should be enough for people to hit the streets and throw politicians out.
    Maybe now is the time to celebrate the rights to arms and revolt against an unjust government?

  12. To Robert’s Comment (above):
    But the government has already taken away our guns. Stone knives and bearskins against the kevlar jackets on the police?

    Oh, I forgot – THE CRIMINALS HAVE GUNS!!!

  13. As off topic as this is…I would like to mention that while we scream about injustice, there are many other injustices that are probably worse in severity. We did basically steal an entire continent from the people living here, and we continue to benefit from it at their expense. ACTA is bad, but if we are going to complain about being on the ugly end of injustice we might as well acknowledge when we are on the giving end of injustice.

  14. na
    What a novel idea! Thieves should be held responsible for their illegal actions!

  15. Yeah, well, ya know what? The first Fed that shows up at my door because I downloaded the latest episode of a TV show is going to be on the wrong end of an AK47.

  16. Here’s what we need:
    Someone needs to get cracking on this right away. We need an open source, cross-platform encryption software, that must:
    * work over IP4 or IP6
    * be refutable (this is essential!)
    * be easy to install/use (should come bundled with every FOSS OS distribution, should be one-click installable on commercial OSs)
    * be opportunistic in sending *by default*
    * be capable of noise generation to foil traffic analysis
    * be optionally mandated by the user (I.E. User can say “no unencrypted FTP will be allowed” in a control panel)
    * be capable of accepting generated noise as if it were legitemate traffic.

    TOR is a good platform to start from, but we need tighter integration and wider adoption.

  17. Obama Sucks Cocks In Hell says:

    Obama Sucks Cocks In Hell
    Sic semper tyrranis!

  18. Ghislain Desjardins says:

    The Office of the Auditor General is pleased that the Globe and Mail has provided a link to our website, giving the Canadian public access to our audit report from Bill Curry’s article Auditor-General sounds alarm on immigration policy. We prefer a weblink to our website, rather than a link to a third party website over which the OAG has no control.

    The OAG website (http://www.oag-bvg.gc.ca) offers PDF and/or HTML versions of Reports dating back to 1981. Many media organizations provide links to our reports, and we appreciate and encourage this practice. Upon request, we can provide media organizations with advice about the most efficient way to facilitate access to our reports, for example, by reducing the number of clicks.

    Since access is directly to our website, we do not require anyone to request permission to post a link to a report.

    Ghislain Desjardins
    Manager, Media Relations
    Office of the Auditor General

  19. Nice use of politicians time
    We probably dont need to catch rapists, murders and drug lords anyway.

    Wouldnt want some kids downloading music in my town. Hang them.

  20. Devil's Advocate says:

    Dear OAG Media Relations Manager,
    “We prefer a weblink to our website, rather than a link to a third party website over which the OAG has no control.”

    Why should a government agency give a rat’s ass how PUBLIC INFORMATION is disseminated, provided what is being distributed is a copy or true fascimile??

    And, what possible “advice” would “media organizations” need from the OAG?? (What parts of a report to avoid pointing out?!)

    I find it absolutely amazing how swift, responsive and to-the-letter an arm of the Government can be when it’s acting in the interest of government itself, yet be so totally unresponsive, unreachable and silent when the People are calling on them to take any rightfully expected actions on their behalf.

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    And, what possible “advice” would “media organizations” need from the OAG?? (What parts of a report to avoid pointing out?!)

    I find it absolutely amazing how swift, responsive and to-the-letter an arm of the Government can be when it’s acting in the interest of government itself, yet be so Miu miu bag
    MIU MIU handbag totally unresponsive, unreachable and silent when the People are calling on them to take any rightfully expected actions on their behalf.

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