One of the biggest stories over the three year negotiation of ACTA has been the willingness of the U.S. to cave on the Internet provisions. When it first proposed the chapter, the U.S. was seeking new intermediary liability requirements with three strikes and you’re out used as an example of an appropriate policy as well as language that attempted to create a global DMCA. The draft released today is a far cry from that proposal with the intermediary liability provisions largely removed and the DMCA digital lock provisions much closer to the WIPO Internet treaty model. In its place, is a chapter that is best viewed as ACTA Ultra-Lite. For Canadians, this is crucial since it now leaves an ACTA that is far more flexible than even Bill C-32. In fact, the Canadian copyright bill now exceeds the requirements under ACTA and could be amended in a manner that will allow for greater balance on digital locks and still be ACTA compliant.
It should also be noted that this chapter is still not concluded. The inclusion of trademarks in some provisions would seemingly require changes to U.S. law and has not acheived consensus. Further, a provision on enforcement procedures ” including the unlawful use of means of widespread distribution for infringing purposes” has not received consensus support. With respect to what has been concluded:
The approach on ISP liability is largely unchanged from the last leaked draft and involve two provisions. First:
Each Party shall endeavor to promote cooperative efforts within the business community to effectively address copyright or related rights infringement while preserving legitimate competition and consistent with each Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.
Each Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of infringement of copyrights or related rights and where such information is being sought for the purpose of protecting or enforcing copyright or related rights. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with each Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.
Note that neither of these provisions create new substantive obligations. The first provision requires an effort to promote cooperative efforts, not new laws. The second provision is permissive – a party may provide new laws, but is not required to do so.
The anti-circumvention rules have also undergone significant change from the initial proposal and have even changed from the last leaked draft from the August round of negotiations in Washington. The primary requirement is a mirror of the WIPO Internet treaty provision, which features considerable flexibility in implementation:
Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, performers or producers of phonograms in connection with the exercise of their rights in, and that restrict acts in respect of, their works, performances, and phonograms, which are not authorized by the authors, the performers or the producers of phonograms concerned or permitted by law.
The other provisions attempt to define “adequate legal protection and effective legal remedies” but still leave considerable flexibility in doing so. The language is such that you can picture the U.S. delegation slowly caving on its demands in order to achieve consensus. For example, in the last draft the U.S. wanted to include circumvention of access controls:
the unauthorized circumvention of an effective technological measure [US/Sing/Aus: that controls access to a protected work, performance or phonogram and is] carried out knowingly [US: or with reasonable grounds to know
This language is now gone – there is no requirement in ACTA for a prohibition on access controls. This is notable from a Canadian perspective, since Bill C-32 specifically targets access controls in some of its provisions.
There are now two sets of additional requirements. First:
to the extent provided by its law:
(i) the unauthorized circumvention of an effective technological measure carried out knowingly or with reasonable grounds to know; and
(ii) the offering to the public by marketing of a device or product, including computer programs, or a service, as a means of circumventing an effective technological measure; and
Note that this requirement now come with a caveat of “to the extent provided by its law.” This was demanded by the Japanese delegation and it appears to effectively make the additional definitions optional, since it is only to the extent found in a country’s domestic law. In other words, if it is not found in the domestic law, there is no requirement to implement these requirements.
the manufacture, importation, or distribution of a device or product, including computer programs, or provision of a service that:
(i) is primarily designed or produced for the purpose of circumventing an effective technological measure; or
(ii) has only a limited commercially significant purpose other than circumventing an effective technological measure.
These specific requirements are all subject to appropriate limitations and exceptions. The final paragraph in the Internet chapter provides:
In providing adequate legal protection and effective legal remedies pursuant to paragraphs 5 and 7, each Party may adopt or maintain appropriate limitations or exceptions to measures implementing paragraphs 5, 6 and 7. Further, the obligations in paragraphs 5, 6 and 7 are without prejudice to the rights, limitations, exceptions, or defenses to copyright or related rights infringement under a Party’s law.
This is crucial, since it means that any anti-circumvention protection can still be made subject to fair dealing or fair use as well as any consumer exceptions. Moreover, it represents another major cave by the U.S. The earlier drafts included the following critical limitation on the inclusion of exceptions:
so long as they do not significantly impair the adequacy of legal protection of technological measures or electronic rights management information or the effectiveness of legal remedies for violations of those implementation measures.
With those limitations dropped, there is no limiting language on the scope of exceptions to digital locks.
Taken together, the Internet chapter must be seen as failure by the U.S., which clearly envisioned using ACTA to export its DMCA-style approach (in fact, the failure extends to the anti-camcording provision, which is now merely something a country may do, but is not required to do). Instead, the treaty leaves much the same flexibility as exists under the WIPO Internet treaties and opens the door to Canadian reforms to the digital lock provisions in Bill C-32.