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ACTA Draft Text Released: (Nearly) Same As It Ever Was

As the ACTA negotiating countries promised, a draft consolidated text was released earlier today.  Unlike the earlier leaked version which provided specific attribution to country positions, this official version has removed references to those positions, so the text does not state who supports which version of the text.  Those interested in deciphering that bigger picture, should look at the official release alongside the leaked version (text version here).

While there is still considerable disagreement – lots of square brackets indicating areas where the text has not achieved consensus – the countries did make some progress last week in New Zealand. There will be another round of negotiations in June in Switzerland, followed by at least two more rounds in the fall.  The target remains the end of 2010 to conclude a deal, but there will still need to be considerable compromise.  Moreover, the continuing position of the U.S. and E.U. that they will not change their domestic laws will have to change since there are too many inconsistencies for both to be right.

Today's release marks an important development that highlights the value of public pressure.  As politicians and the public demanded greater transparency, the negotiating countries presumably concluded that the issue was becoming a major impediment to concluding an agreement and decided to make it available (the fact that it was already leaked and that the countries standing in the way of transparency were publicly identified were undoubtedly additional considerations).  Moreover, the benefits of public pressure can also be seen in parts of the text.  The near-consensus on a de minimis provision – which was not even included in the initial proposals – reflects a desire to address concerns around personal searches at the border.  Similarly, the removal of the U.S. footnote on graduated response may also reflect public concern and pressure.

Public pressure has helped make ACTA marginally better, but the release of text confirms many of the fears regarding the substance of the treaty.  As discussed below, it would require dramatic changes to many domestic laws with new requirements on statutory damages, injunctions, anti-circumvention rules, and ISP safe harbours.  Many of these provisions are substantive copyright rules, not limited to counterfeiting (as the title of the treaty suggests) nor enforcement (as sometimes claimed). 

Moreover, the institutional issues around ACTA remain a huge concern.  This is explicitly an attempt to circumvent WIPO and the more open, transparent, and inclusive international process.  The implications are very significant for all countries as this undermines the ability for many countries to have their concerns heard.  Instead, many will face demands to comply with a treaty from which they were completely excluded during the negotiation process.

Full analysis of the updated consolidated text will take some time, but a few quick comments on key issues in the text.

The Internet Chapter

The Internet chapter has attracted the most amount of attention in the press and online.  Note that there are still lots of square brackets, including on basic issues such as the scope of the provisions (disagreement over to include patents) and on some issues whether the provisions are required or recommended (ie. shall or may).

ISP Safe Harbour/Liability

The key provision – and the most contentious – is the ISP safe harbour provision.  At the moment, there is even disagreement over whether it is a requirement or recommendation.  There are also several options on the table, with the U.S., EU, and Japan all tabling proposed language.

i.    Three Strikes/Graduated Response

This has been one of the hot button issues and countries have tried to counter concerns by arguing that there is no mandatory three strikes provisions within ACTA.  That is true.  In fact, the footnote proposed by the U.S. which envisioned three strikes as a model policy for ISPs has been removed from the consolidation (the footnote now only notes that one country – likely Japan – would like language confirming that its national law complies with the ACTA provision).  This indicates that the U.S. has dropped the reference to three strikes from its proposed language on ISP liability.

However, that does not mean that three strikes has disappeared from the draft entirely.  The U.S. proposal for ISP liability is one of three options currently being considered.  The European option preserves, but does not require, three strikes:

Paragraph 3(a) shall not affect the possibility for a judicial or administrative authority, in accordance with the Parties legal system, requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility of the parties establishing procedures governing the removal or disabling of access to information

The EU will argue this is consistent with the law in a few of its member states.  If the approach is adopted, it will clearly keep three strikes on the table and could be used in other ACTA member countries to encourage its adoption.  Note that Japan has offered a third alternative which involves the development of codes of conduct between rights holders and ISPs.

ii.    Notice and Takedown

ACTA still contains a notice-and-takedown requirement for ISPs to qualify for a safe harbour.  That is inconsistent with Canadian law, which has no such requirement and has twice proposed a notice-and-notice system.  Notice-and-notice has been used effectively for many years in Canada.

Anti-Circumvention Legislation

The anti-circumvention provisions continue to mark a renegotiation of the WIPO Internet treaties by mandating the implementation of the DMCA.  The provision calls for adequate and effective legal protection for technological protection measures (much like WIPO), but then requires provisions against devices that can be used to circumvent and some countries want the provision to extend to access controls (neither in WIPO).  There are still considerable square brackets on this provision, but the direction is clear – limit the flexibility that exists under international law for the protection of TPMs.

Civil Enforcement Chapter

The countries still disagree on scope – some want it extended to all IP rights, others limited to copyright and trademark.  The proposed language still includes broad injunction powers and requires the establishment of statutory damages, something not found in many ACTA countries. Moreover, Canada and New Zealand appear to dropped their request for the following limiting language:

For greater certainty, a Party may limit or exclude damages in certain special cases.

The statutory damages provision still includes disagreement over whether it is required (U.S. and Japan) or optional (EU, Canada, New Zealand). 

There is much more here – analysis to follow.

Border Measures Chapter

There is still disagreement on scope as the EU wants the option to extend to all IP, others want it limited to copyright and trademark. There was major progress in New Zealand on the de minimis provision, which is designed to address fears of iPod searching border guards.  Prior drafts contained several proposals.  The current consolidation reflects near consensus:

Parties may exclude from the application of this Section small quantities of goods of a non-commercial nature contained in travelers’ personal luggage [or sent in small consignments.]

There are still broad disclosure and information sharing requirements within the chapter.

Criminal Enforcement Chapter

The chapter still targets both commercial infringement and cases of non-commercial "wilfull" infringement.  This section illustrates the downside of removing attribution from the text.  The leaked consolidation showed many variable proposals.  The new text simply places everything in square brackets and does not flesh out the different proposed language.

The EU proposal to include "inciting, aiding, and abetting" also remains in the text, in square brackets.  Proposals to target labels and camcording in theatres remain in the text.

Other Chapters

ACTA contains many other chapters on institutional issues, capacity building, international cooperation, and more.  A quick scan suggests those chapters remain unchanged.  They were not on the New Zealand agenda.

24 Comments

  1. Now public pressure needs to be put on all governments with respect to the 3 strikes law. I think we are starting to see the political cost of such a law in the UK. Is it my imagination, or was the architect Sarkozy of this law completely decimated in Frances regional Election a few months back.

    “Although the elections are meant to be about regional issues, such as public transport, other factors like high unemployment and resentment over plans to reform the judicial and pension systems have prompted many French people to use the ballot to punish the government. ”

    http://news.bbc.co.uk/2/hi/8579232.stm

  2. I also notice that they’ve added a few more definitions – at least in footnotes. Disturbingly, but not surprisingly, they define online service provider quite narrowly to include those which are simply acting as conduits to the internet for users.
    They can remove the references to which country is making which bracketed suggestion, but it isn’t difficult to figure out simply based on the content.
    Still a lot of disturbing material. Dropping the “special cases” provision under civil enforcement is only one of the more disturbing developments.
    With any luck, public pressure will continue – certainly the three strikes and border search provisions will help to keep this on the hot seat….

  3. The human brain can circumvent any possible copy protection, given time to do so, at most requiring a pencil and paper to track things. Outlawing circumvention is ultimately not far removed from trying to legislate what people are allowed to think.

  4. I earnestly hope now that the cat is out of the bag that many more people will oppose the draconian measures in this agreement. It is so blatantly obvious which deep-pocket cartels are behind this legislation, are people so sheepish to just follow along or will we put our public servant’s noses to the wheel? Here in Canada we do not want US lobbyists determining our digital freedoms. Go home Yankees, go home! (apologies to all my good American friends). I will not vote for any government who supports this legislation, we all must make the ‘old-clueless-generation’ politicians aware that the world has changed, their back-room business buddies are hardly relevant in the digital age and to support new innovative partners who will service the current and future generations.

    In a more calm tone I would like to add that I support Artists and understand they need to earn a living, but they may be better off adopting the new paradigm of digital distribution and bypass the middle-men all together. THATS where they are really being robbed.

  5. 3strikes and copyright
    Only focussing on copyright in my comment. If musicians/composers would really use the legal possibilities of their rights (and they are more or less the same all over the world) they could use the internet as a distribution/marketing tool and start managing their own rights, make their music legal (and if they want for free) by giving a license to home users and give a license for a small fee to business users, then the whole issue of #3strikes (or a milder form) would never have been thought of. So pleading to all composers use the law and the internet to make your music legal, then a big chunk of the #ACTA treaty can stay empty between the square brackets. So manage your music rights yourself, use CC or VillaMusicRights.

  6. Who should I be writing?
    I am wondering who I should write/talk to about this matter. I am guessing my local MP? Would writing to MPP do any good?

  7. Let’s STOP ACTA all together
    ACTA is a trap. From the very title it is trap, all language in it is a trap. It is supposed to be about *trade* and *counterfeiting* but it is not. ACTA is about getting hold of the internet and depriving citizens of their fundamental rights. This is an offense to our intelligence. Digital copies are all identical, there is no counterfeiting involved in a digital copy. These old guys are desperate that they will loose their business, they are clueless and short of innovative ideas, they want to apply old methods to new trends. It just won’t work. No more suggestions on the text, no more asking for transparency, no more loosing our time trying to fix it. This is a death sentence, the death of our rights and the death of the internet as we know it. Nothing can fix ACTA. Let’s reject it all together. We should all demonstrate at the next round in Switzerland. Let’s STOP it.

  8. Rick Shera says:

    RHs came up with the name “three strikes”. I am sure they thought it would be both easy to understand and a good sell to the public when combined with the “copyright is theft” frame they had successfully created. If three strikes worked so well to clean up the streets of New York, then it will work to clean BitTorrent thieves off the internet, seemed a good way to spin it.

    But the internet driven backlash put paid to that, so RHs came up with a new strategy. Give it a description that completely obscures what is happening and sounds eminently reasonable. Maybe “graduated response” would work? That sounds good, they thought, as it could still be used to connote the military style battle that must be waged to safeguard the interests of downtrodden creators and out of work innovators, but it sounds like we are being reasonable and low-key.

    But, of course, there is no difference between graduated response and three strikes – they both describe systems, variants of which have been agreed between ISPs and RHs in Japan and Ireland, imposed by law in Korea and France and which are foreshadowed for the UK once the election is over and OFCOM is given its direction by the Government. They all end with termination.

    Now we hear that neither three strikes nor graduated response will be mandated by ACTA. I agree with Michael – all that says to me is that we can expect another name for this type of system to be spun out shortly, not that RH driven negotiators have in any way forsaken it.

    The focus should not be on somewhat empty promises tagged to RH created names, but on ensuring that there is an appropriate level of due process and that any remedies are proportionate. It is here that ACTA continues to disappoint.

  9. Me again, more ranting
    Is it not obvious to the talking heads in government and the “entertainment” industry that the more you try to lock someone down against their will the more they will want to defy you? It is human nature if one feels unjustly treated to not respect the opinion or the rules of the perpetrator. In this case it is the content industry trying to bully the consumer to buy a product in a way they don’t want it. They think, “Oh, if you no longer want to buy our product at this price in this format then we will legislate it so you are forced to”. I understand everyone wants to make a buck but isn’t capitalism all about the market determining the value of a product not the lobbyist groups?

    On another point, you hear how the music industry profits are falling year after year, well boo-hoo, did you hear them complain when those profits rose year after year with the advent of the CD? Now that people have replaced their music collections in digital form the demand has gone down, get over it! Piracy I’m sure has some effect on the bottom line, but more so is the redistribution of the consumers spending habits of their entertainment dollars and the rediscovery of the single vs. album now that the distribution medium is out of big content’s control.

    Let’s be real folks, here is the reality … Big companies are being squeezed by innovation and market diversification. Rather than change with the times they throw money at politicians to legislate their old business model into the economy, capitalism be dammed. It’s all about greed and power and you are the pawns. The thing is there is this new contraption called the Internet that takes away control from the big wigs and gives it to the people. They hate it, they don’t understand it and they hate it with a passion. Well the more they fight it the less relevant they become, little boys with their fingers in the dike before it breaks and they are washed away. It will take some time to overcome the inertia that big content has in the economy, but it will come. And not many of us will bat a tear.

  10. Anti-Consumer Trade Agreement
    http://arstechnica.com/tech-policy/news/2010/04/praising-cursing-acta-reactions-roll-in.ars – reactions from industry to acta. Big media is happy – tech companies are calling it Anti-Trade. Who has more lobbying clout or market power, they will win.

    you’re gonna have a untechsavvy or a jaded younger crowd saying: gee, with all these laws flying left right and center, i can’t even enjoy the things i buy in peace. i’ll stop consuming everything then. no more internet, tech or music.

    where was the input from younger consumers in this debate and treaty? we are voting with our wallets so to speak. if they want to ignore that, then they risk alienating their market for the next 10 to 20 years – logic fail due to protectionism.

    @jan – not gonna work – there can be so much more money made with the current model according to big media.

    what is the world coming to?

    exactly where we brought it.

  11. pat donovan says:

    grunt
    ACTRA? evolution is conservative, remember.. ie: the dinosaurs had to die out before evolution continued further.

    if NWO legalized pot, downloads, taxed churches, cleaned up food…

    they are more likely to assume linus users are terrorists, thou…

    packrat

  12. Let’s suppose that that ACTA were carried through as some of its strongest advocators might like. And let’s say that some modestly benevolent movie studio allows people to copy their movies to their spanking new iPad, for instance (presumably for private use). The problem comes in a few years when new technology comes out that’s not remotely like the iPad (probably vastly technologically superior): unless the company has had the resources to invest in keeping up with changes in technology for the purposes of utilizing their older material, a person is left being locked into only dealing with Apple stuff — they cannot legally transfer their already purchased material to any entirely new device of a similar purpose that they might happen to acquire over time. In addition to almost openly serving the agenda of big businesses while strangle-holding the little guy, ACTA’s provisions for outlawing devices that can potentially circumvent copy protection creates a situation that, however inadvertent, ends up directing what sort of technologies can be legally developed in the future. How, in any sort of sane society that wishes to embrace competition and a technologically advanced future is that a remotely positive thing?

  13. Bob Robertson says:

    Who to write to?
    If you’re in the UK, as most posters seem to be, http://www.libertarian.co.uk is your friend.

  14. I’m in Canada. A while back, in response to some concerns about proposals such as ACTA, it was claimed that Canadian law will trump ACTA, but my biggest concern is that Canadian law itself will be changed before adoption so that it complies with the expectations of an agreement like ACTA, thereby making the statement that it would be subservient to Canadian law moot. It is tragic that in the wake of a national public consultation for copyright reform wherein the overwhelming majority of submissions were in complete opposition to the types of proposals that ACTA has that our nation is even still considering it. Seriously, what was the point of the consultation if our leaders were just going to ignore it and go and sign on with ACTA anyways?

  15. Mark:
    “Seriously, what was the point of the consultation if our leaders were just going to ignore it and go and sign on with ACTA anyways? ”

    They won the last election didn’t they? And you won’t see those changes to the law until after the next election.

  16. Well, they got a minority anyway, thats close to winning :)

  17. piracy is a pretext. the NWO globalists have lost control of the message. who watches, believes or buys msm anymore? it’s all disinformation and they want you to pay for it! the Illuminati does not want to be illuminated on the net. who will show up for their current or next war?

  18. 1) you can’t lose what you never had
    2) YOU CANNOT STEAL THE ETHEREAL

  19. Just encouraging people to ignore the government.
    Given that the US statutory damages law is *actually unConstitutional* and will be ruled to be so within a few years, it is rich that the US is pushing to make it mandatory elsewhere (in countries which *don’t* have Constitutional rules against “excessive fines”).

    If you make everyone into “lawbreakers”, nobody will bother to pay attention to laws whether they are reasonable or not. This has already been warned about by major legal scholars.

  20. Absolute media control. notice 911 is ignored on tv and papers. why? high treason by usa gov working with mossad. the powers behind this legislation brought us 2 world wars and 70 million dead. read ‘conjuring hitler’ and weep for your forefathers.
    be very afraid of this legislation. the net is not broken, why fix it?

  21. now that everyone can digitally record audio and video at home, we don’t need the riaa or hollywood,
    it’s Over and Dunwi for hollywood and the recording industry. I’m surprised they lasted this long. everyone should buy a guitar or piano, learn to sing and memorize some songs. make your own movie

  22. Great as always
    Good info as always Michael. Thank man.
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