The Anti-Counterfeiting Trade Agreement negotiations continue in a few hours as Seoul, Korea plays host to the latest round of talks. The governments have posted the meeting agenda, which unsurprisingly focuses on the issue of Internet enforcement [UPDATE 11/4: Post on discussions for day two of ACTA talks, including the criminal enforcement provisions][UPDATE 11/5: Post on discussions for day three on transparency]. The United States has drafted the chapter under enormous secrecy, with selected groups granted access under strict non-disclosure agreements and other countries (including Canada) given physical, watermarked copies designed to guard against leaks.
Despite the efforts to combat leaks, information on the Internet chapter has begun to emerge (just as they did with the other elements of the treaty). [Update 11/6: Source document now posted] Sources say that the draft text, modeled on the U.S.-South Korea free trade agreement, focuses on following five issues:
1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.
2. A requirement to establish third-party liability for copyright infringement.
3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). For example, in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content. Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30. They include policies to terminate subscribers in appropriate circumstances. Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.
4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements. For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules. These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception. Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices. The current draft does not include any obligation to ensure interoperability of DRM.
5. Rights Management provisions, also modeled on U.S. free trade treaty language.
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One of the longstanding demands from lobby groups seeking reforms to Canada's IP enforcement rules has been changes to the Proceeds of Crime Program. The POCP permits the forfeiture of wealth accumulated through criminal activities. While many statutes qualify, the Copyright Act does not. The rationale for excluding the Copyright Act was to ensure that creators - not the government - received whatever assets could be seized arising from cases of infringement. As the government now notes:
Under the Copyright Act, a copyright owner is able, pursuant to section 35 of the Act, to claim damages and profits from infringers. Because of a concern that the application of the proceeds of crime provisions could undermine a copyright owner’s ability to recover damages and profits in a potential civil action launched for copyright infringement, the Copyright Act and its offences were excluded from the application of Part XII.2. However, experience has shown that very few civil claims against criminal infringers have been made. Indeed, representatives from the intellectual property industry have sought to have the Criminal Code’s confiscation of proceeds regime apply to the proceeds obtained from the commission of copyright offences.
The government reports that it consulted with several copyright groups, including ACTRA, CFTPA, CMPDA, ESA, CRIA, and MIAC. In light of their support, it is proposing to remove the exclusion of the Copyright Act from the scope of the POCP (hat tip: Rick Theis). Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday November 03, 2009 |
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CBC's The National covered the fee-for-carriage issue last night, including a shout-out to greater consumer choice. Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday November 03, 2009 |
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The NY Times reports that contrary to fears, DVRs are proving to increase ratings and that many viewers still do not skip commercials. Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday November 03, 2009 |
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Cellphone Rate Calculator is a new website that has launched to replace the cancelled government cellphone cost calculator. Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday November 03, 2009 |
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