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ACTA Guide: Part Four: What Will ACTA Mean To My Domestic Law?

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Thursday January 28, 2010
Questions about ACTA typically follow a familiar pattern - what is it (Part One of the ACTA Guide), do you have evidence (Part Two), why is this secret (Part Three), followed by what would ACTA do to my country's laws?  This fourth question is the subject of this post, Part Four of the ACTA Guide.  The answer is complex since the impact of ACTA will differ for each participating country: some will require limited reforms, others very significant reforms, and yet others (particularly those not even permitted to participate) complete overhauls of their domestic laws.

That is not the answer that the participating countries have been providing. Instead, most have sought to dampen fears by implausibly claiming that ACTA will not result in any domestic changes in their own country.  With that in mind, we get:
  • the European Union stating "ACTA will not go further than the current EU regime for enforcement of IPRs"
  • the USTR maintaining that ACTA will not rewrite U.S. law
  • Australia's DFAT confirming they do not expect to see major domestic changes to Australian law as a result of the ACTA
  • New Zealand stating "ACTA will not change existing standards"
  • Canadian Industry Minister Tony Clement assuring the House of Commons that ACTA will be subservient to domestic rules
Of course, if all of this is true, skeptics might reasonably ask why ACTA is needed at all.  The truth is that ACTA will require changes in many countries that ratify the agreement.  The EU Commissioner-designate for the Internal Market, Michel Barnier, recently acknowledged precisely that during hearings in Brussels.  Meanwhile, U.S. lobby groups have stated that they view ACTA as a mechanism to pressure Canada into new copyright reforms.

While Canadian officials may put on a brave face regarding the prospect of ACTA-inspired domestic reforms, the reality is that behind-the-scenes this has been a major concern for officials since before ACTA was officially unveiled.  I recently obtained under the Access to Information Act a copy of a response to the U.S. ACTA discussion paper from 2007 written by Doug George, who until recently led Canada's delegation on ACTA at DFAIT.  George's response takes great pains to emphasize the differences between countries and the need to take this into account:

While there may be a need to coordinate our efforts at the international level to fight counterfeiting and piracy, including through the negotiation of an ACTA, countries have implemented different systems and legislation to address this issue.  This needs to be taken into account in our discussions. For instance, the role of governments versus rights holders in enforcing IPR can vary greatly among the various systems, and specific systems for implementation have developed in different directions.

Canada's fears have quite obviously been realized as the vision of ACTA proponents is a one-size fits all solution based on the U.S. model of IP enforcement.  This will, by its very definition, require domestic change in many countries.

As for the specifics of domestic reforms, they depend on the country. Countries without statutory damages would need to add those to their laws.  Countries without DMCA-style anti-circumvention rules or a notice-and-takedown system would require those changes.  Countries without anti-camcording rules or new border enforcement measures or a host of other ACTA-related provisions would need to address those concerns.  There has been some preliminary analysis of possible changes in various countries. These include:
Not to be forgotten are those countries that are not part of the ACTA discussions.  The exclusion of many major trading partners (and the alleged leading sources of counterfeit products) are a major story since those countries will likely also face pressure to implement ACTA despite not having had the opportunity to participate in the talks.  I discussed that issue - and the need for developing countries to demand a seat at the table - last year in this piece.
Comments (16)add comment

AlB said:

NAFTA changed Canadian and Mexican laws - indirectly
NAFTA is a good example of Treaties changing local laws. Under NAFTA many companies have forced the Canadian and Mexican governments to change laws related to the environment, health and trade because they constituted trade barriers.

I would not be surprised if ACTA trashed privacy and human rights because they got in the way of the copyright holders protecting there rights.
January 28, 2010

Todd said:

...
There is a way to get around all this copyrighted material, do not download copy protected material you do not own. The internet is flooded with fantastic and bizarre podcast from almost every place on the planet, so why do people feel the urge to steal the latest hip song. Try to be apart from the herd and listen to music not listed in the top 100 of anything. If you think lady gaga and britney are the best there is to offer, good for you, just buy the cd's, it is not that pricey with amazon and ebay. If more people did not listen to top 100 hits music, copy right laws would not be an issue, but sadly most people all listen to the same stuff.
January 28, 2010

@Todd said:

Not black & white..
Todd What If I Own The Music etc? If ACTA and a US-Style system would be implemented here it would be against the law to download music I own already on cd etc.. It would technically be illegal to rip cds to my computer (definately so if they had any form of copyright protection)... It's a grey zone in Canada and I hope it stays that way.. US DMCA is not what we need up here.. It's all hype really.. US Lobbyists just want to make us look like the next China so they can gain control.. Sad really.. The industries could simply change their models.. They industries would rather milk babyboomers and people who still buy cds instead of building for the future..
January 28, 2010

crade said:

...
@Todd, yeah sadly that is not true. If only ACTA actually did what they claim and hurt copyright infringers. It doesn't. It hurts everyone else instead.
January 28, 2010

crade said:

...
Oh it is much worse than that. The ACTA / US style system of protects digital locks legally regardless. Companies use these for their own purposes, to prevent competition, or control users, and they will certainly do much more of it in the future given legal protection to the point where it is illegal to even create something to circumvent the locks to see what they might have hidden there. Much of linux would become illegal (despite doing nothing wrong at all) because it needs to circumvent the anti-competitive digital locks included in software. Toshiba (or anyone else) wouldn't be able to legally release dvd players that can play dvd's from other regions that we supposedly have trade agreements with. The list of problems to those who have no interest in copyright infringment is very long. Those who can't easily defend themselves against litigation (thats us) can be targetted and controlled (even more than they / we already are) by false accusations to shut down their internet, stiffle their commentary, and / or obtain settlement money.
It will likely take awhile for companies to take full advantage of the new laws, and they would want be gradual about it to prevent too much backlash, but the potential for abuse in the proposed laws in the future is really devastating. It really is a large shift in power from individuals to corporations. We can already see some of it starting in the countries that have implemented them.
January 28, 2010

Dominic said:

Todd, I wish I could agree with what you said...
But I can't, because I think the danger of having IPs police the Internet and cut so-called infringers' access to it is that peaceful political dissent and the access to real information get targeted as well, under the guise of punishing whatever violation of anti-counterfeiting provisions they would allege is being committed.

Another reason why I can't agree is because ACTA is also targetting poor countries' access to medication: http://www.oxfam.org/en/pressr...-countries

That being said, I still encourage people to do just what you said. Turning away from the stardom industry promoted by those companies willing to cut people's access to the Internet seems not only a great way to play by the rules these companies set for their products, but it is also a great way to start discovering new artists, new music, new movies and encouraging them. This can change the world, I think. And the Internet is a great tool to go on that discovery path... if one stops believing that there are only a handful of artists out there one can discover so much.

In short, I agree that there is no need to violate any copyright provisions that owners of a product may attach to it - but at the same time I think ACTA is completely unacceptable, unreasonable and dangerous, thinking of the consequences it can have, and also thinking that it may well serve other purposes than anticounterfeiting.

Plus: I don't think we should accept that treaties be negotiated in secret on our behalf. This makes no sense in a democracy.

January 28, 2010

Oble said:

The End of History
Attempts to stop everything to the benefit to the major players arise throughout history. They always fail and the ones that benefit most are those that ignore the stop sign and keep on going.

A huge advantage will go to those countries that ignore ACTA. They will be able to continue to innovate while ACTA disabled countries will be stuck in the past.

January 28, 2010

Anon-K said:

Negotiating positions, not statements of fact
"Instead, most have sought to dampen fears by implausibly claiming that ACTA will not result in any domestic changes in their own country". Of course they will say that. That is, most likely, the current negotiating positions of the countries. At this point in time, no one can really say what the final impacts would be, only that they are trying to get everyone else to adopt their own standards.

I am starting to wonder just how many countries are going to walk away from the talks. There is nothing keeping them there. The US uses inclusion of US-style DMCA into trade treaties and aid packages to force it on other countries. Eventually this will backfire on them, as more and more countries start to refuse to sign the treaties, or even do business with them (the US government is already starting to feel the heat on their ITAR policies from US corps that are losing business because of it).
January 28, 2010

J. Canadien said:

Canada? Surely you meant The Kingdom of Harperstan...
"Canadian Industry Minister Tony Clement assuring the House of Commons that ACTA will be subservient to domestic rules"

Such assurance is likely disingenuous and worthless by all measures, given the party affiliation of the person to whom you attribute the statement. But the point is moot since Canada and its democratic system recently ceased to exist.

Here in the Kingdom of Harperstan (The Land Formerly Known as Canada), His Royal Dumbass King Stephen the Contemptible would likely just issue a royal declaration that it be law and shout "off with their heads!". This would be followed by the usual uniform grunted chorus of "aye aye's!", pathetic self-aggrandizement, smarmy windbagging and dietary overindulgence at which that cabal of wooden puppets are so adept.
January 28, 2010

Hindgrinder said:

Lower the voting age to 10 years old...kids are more informed than their grandparents about the internet.
Most grade school kids know more about the internet than many of our geriatric parlimentarians.
Surely we should start teaching them that it's NOT LEGAL TO SHARE because Hollywood needs to get overpaid.
January 28, 2010

James said:

...
Fuck all of you in the United States for bringing ACTA to our shores, and fuck our politicians for not having the balls to stand up to you.

I will enjoy seeing China absolutely destroy you.

Rot in hell, fuckers.

Leader of the hamstrung and police-state world, more like.
February 01, 2010

el0x said:

seriously?!?!
oh how i love that the supposed big crackdown happens when money is tight with everyone due to the recession and then the companies are starting to make a huge fuss about it.
March 26, 2010

R2D6 said:

Come on
I read through the posts and agree to the general tone vented here. Criminalizing download is utterly unacceptable, the ACTA seems more to shape into a Patriot Act type of laws than anything else. Where is our Democracy? Oh wait maybe we never really had one but rather a Democratic Dictatorships. The industry wants more power but they still don't get it. Give people what they ask for, that is an easy way to access media, by downloading from the internet. With all the movies, music, games... being produced nowadays, people are used to (addicted to ?) yearn to acquire as much as they can. The industry has to come up with a platform where one can download digital copies of HD movies for a buck or 2 !! No more than that. We now have had Itunes for some time but 1 song still cost 0.99$, so a 12 song cd sis 12 $, I don't see much of a revolution here, Greed still reigns . The market is becoming worldwide, distributions cost through the internet are being lowered immensely, Give us an album for 2to 3 $ and movies for the same price, all on a convivial, cutting edge download website, do that and you will start a revolution. Adapt to today's market rather than to cling on older model. As long as you don't meet the demand, people will always find ways to get want they want and it that case for free. ACTA or not you can't imprison a whole world generation that is about the replace you and kick your ass.
April 03, 2010

D said:

...
Some important FACTS:
In Canada, when you purchase ANY blank recording media, be it;
blank DVDs, CDs, Hard drives, Zip drives, USB drives, Cassette tapes, Reel-to reel tape, Floppy discs or even 8-track tapes, a surcharge is added to your bill.
The surcharge goes to the Song writers, Copyright holders, etc., to compensate for POSSIBLE copying of their material.

This may not be a perfect system, but our artists, music firms, copyright holders, software creators and the like, at least get some compensation for their work.
To sue fans, for allegedly recording their work, would kill the careers of many, considering how fast an E-mail or YouTube posting, can bring any company to it's knees, whether they are guilty or not. Any proceeds, after legal fees, would be miniscule, compared to the loss of fan base..

The CRTC, Canada's Broadcast regulator established & enforces, a 30% Canadian Content rule, for any Radio, TV or Internet provider.
Ignoring this law, is one of the fastest ways to lose your Broadcast Licence or be refused an ISP Licence or renewal.
This helps our talent to be heard above the din of the American Music & Movie Industry & the Top 100.

CAPAC & SOCAN are 2 organizations of publishers, authors & composers that ensure that they are paid accordingly for airplay, sales & blank media surcharges for their songs, etc. There are other groups involved that serve their members in similar roles.

A subsidy? Protectionism? No, our country, our people, our rules. No different than in the USA, save for the Music/Movie lobbyists, who buy changes in law. Don't like it? Keep your nose in your own country & support your own country's music, movie, software & publishing people.
Artists/copyright holders, et al, talk it over with those in the Canadian industry, to see if it would be practical to adopt this formula.

"J.Canadien," you are a disgrace, save your moronic political rantings for the Editorial pages of The Globe & Mail. You are damn fortunate that you live in Canada.
I am not a fan of PM Harper, but your views of PM Harper, add nothing to this discussion, save for proving how far up your ass your head is.
Since you spell Canadian, with an "e," as the 2nd last letter, instead of an, "a," & converse in English, you are likely a Separatist & a Traitor, not a Canadian, so your word means, nothing.
August 13, 2010

Naoko said:

...
The problem with downloading is the sense of entitlement the general population has. If something exists, they are entitled to it. But because they don't want to pay for it, they steal it instead. To avoid guilt, they simply say that they are entitled to have it because it costs too much. If it didn't exist, would those people still say that though?

In that respect, the ACTA Treaty is justified and necessary. If the thieves act as if they feel entitled, then certainly it is fair for corporations to feel entitled to something like ACTA as well. If anything, ACTA is still not enough to balance the scale. At least once ACTA is approved, it may be modified by ACTA's own internal committee without further ratification by the countries that signed it. Those who have official input to the changes are the official industry representatives and the ACTA committee themselves; public input is not required.

December 16, 2010

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http://www.stajump.net/nfl-jerseys/chicago-bears
and yet others (particularly those not even permitted to participate) complete overhauls of their domestic laws.
January 28, 2011

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