On the heels of the leak of various country positions on ACTA transparency, today an even bigger leak has hit the Internet. A new European Union document prepared several weeks ago canvasses the Internet and Civil Enforcement chapters, disclosing in complete detail the proposals from the U.S., the counter-proposals from the EU, Japan, and other ACTA participants. The 44-page document also highlights specific concerns of individual countries on a wide range of issues including ISP liability, anti-circumvention rules, and the scope of the treaty. This is probably the most significant leak to-date since it goes even beyond the transparency debate by including specific country positions and proposals.
The document highlights significant disagreement on a range of issues. For example, on the issue of anti-circumvention legislation and access controls, the U.S. wants it included per the DCMA, but many other countries, including the EU, Japan, and New Zealand do not, noting that the WIPO Internet treaties do not require it.
A brief summary of the key findings are posted below, but much more study is needed.
Internet Enforcement Chapter
- Canada has expressed concern with the title of the chapter ("Special Measures Related to Technological Enforcement Means and the Internet") and the substance of the chapter
- On the ISP safe harbour chapter, the leak identifies three proposals (consistent with an earlier NZ comment). In addition to the U.S. proposal that was leaked earlier, there is a Japanese proposal and one from the EU. Moreover, many countries have raised specific issues about the U.S. language. For example, New Zealand notes that the safe harbour appears to cover Information Location Tool providers (ie. search engines), but that it wonders why there is a concern of liability to begin with.
- Japan's alternative proposal calls for ISP liability based on knowledge of infringement. It states that there may be liability if it is technically possible to prevent the infringement and the provider "knows or there is reasonable ground to know" that infringement is occurring. There are additional provisions on the inclusion of a notice system and industry cooperation.
- With respect to the requirement of an ISP policy that could include three strikes as a pre-requisite for qualifying for the safe harbour, New Zealand is opposed to the condition altogether. Meanwhile, Japan notes that its law does not contain a policy requirement and it would have to consider whether it can agree to that requirement.
- On the implementation of notice-and-takedown, Canada has noted that the relationship between third party liability and ISP limitation of liability is unclear.
- On the anti-circumvention rules, which involves a U.S. attempt to implement a global DMCA, the EU would like to exclude access controls from the ambit of the provision. They are not alone – New Zealand opposes their inclusion and Japan also takes the position that access controls are not required by the WIPO Internet treaties and is apparently concerned about the implications for its domestic law. There is no reference to a Canadian position, despite the fact that this goes beyond current Canadian law.
Civil Enforcement Chapter
- the U.S., Japan, and the European Union want the civil enforcement powers to extend to any intellectual property right. Canada, Singapore, and New Zealand seek a more limited treaty that covers only copyright and trademarks.
- the EU is seeking injunctive relief powers against intermediaries whose services are used by a third party to infringe an IP right. The EU is alone in focusing on intermediary injunctions.
- on statutory damages, the EU seeks to limit damages to actual damages, while the U.S. is proposing statutory damages. There is also dispute on the scope of the IP rights (all vs. just copyright and trademark). Canada and NZ also want to limit or exclude damages in certain special cass.
- on the disclosure of information related to investigations, the U.S. is pushing for very broad language, while the E.U. wants to limit with specific kinds of information (and Canada has proposed further limiting language).