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ACTA's De Minimis Provision: Countering the iPod Searching Border Guard Fears

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Tuesday March 23, 2010
The leak of the full consolidated ACTA text will provide anyone interested in the treaty with plenty to work with for the next few weeks.  While several chapters have already been leaked and discussed (see posts on the Internet and Civil Enforcement chapters, the definitional chapter, the institutional arrangements chapter, and international coooperation chapter), the consolidated chapter provides a clear indication of how the negotiations have altered earlier proposals (see this post for links to the early leaks) as well as the first look at several other ACTA elements.

For example, last spring it was revealed that several countries had proposed including a de minimis provision to counter fears that the border measures chapter would lead to iPod searching border guards.  This leak shows there are four proposals on the table:

The E.U. version:

Where a traveler's personal baggage contains goods of a non-commercial nature within the limits of the duty-free allowance and there are no material indications to suggest the goods are part of commercial traffic, each Party may consider to leave such goods, or part of such goods, outside the scope of this section.]

Australia, Canada, New Zealand, and Singapore support alternative wording:

Where a traveler's personal baggage contains trademark goods or copyright materials of a non-commercial nature within the limits of the duty-free allowance {Aus: or where copyright materials or trademark goods are sent in small consignments} and there are no material indiciations to suggest the goods are part of commercial traffic, Parties may consider such goods to be outside the scope of this Agreement.]

Japan favours the following:

Where a Party excludes from the application of the provisions in this Section small quantities of goods of a non-commercial nature contained in traveler's personal luggage, the Party shall ensure that the quantitites of goods eligible for such exclusion shall be limited to the minimum allowed within its available resources.]

And Canada, New Zealand, and the U.S. would also support this approach:

Where a traveler's personal baggage contains goods of non-commerical nature in quantities reasonably attributable to the personal use of the traveler there are no material indications to suggest the goods are part of commercial traffic, each Party may consider that such goods are outside the scope of this section]

This is just for the personal search issue.  The consolidated version runs to 56 pages with dozens of issues still in square brackets that signal a lack of agreement.  More on the new issues - particularly the creation of an ACTA super-structure designed to rival WIPO - shortly.
Comments (8)add comment

Chris said:

...
Thank you for keeping abreast of this bullsh*t, Michael. Though I find the whole deal to be distasteful, I'm greatly concerned by what I perceive to be a threat to safe harbor provisions for online service providers.
March 24, 2010

Pergau said:

What do they mean by "may"
It strikes me that when an agreement says "may" as in: "each Party may consider to leave such goods, or part of such goods, outside the scope of this section"

That means that the party will do whatever it wants. the word "may" needs to be changed to "must"
March 24, 2010

Adam said:

...
I think, for clarity's sake, the subtitle of this article should have read:

Countering the "iPod-Searching Border Guard" Fears

This would have made Mr. Geist's meaning much more apparent on first reading of the article title.
March 24, 2010

Robbo said:

This whole sham needs to be stopped
These cretins continue to proceed with this corporate hack of democratic process. Governments need to be address the fact they are in power to represent the people and not corporations. How much more of this insane crap do we have to put up with? Unfortunately it seems the only way to get any government to shield their ears from industry lobbyists is to scream in their face. So be it.
March 24, 2010

Bill Gates > billg@microsoft.com said:

irc.ruinsofchaos.com
If you use mIRC or any other client that connects to IRC, join us on irc.ruinsofchaos.com (and sit and idle in a channel full of people for the lulz).
March 24, 2010

mliving said:

Tony Benn Explains How International Trade Organizations Usurp Elected Representation
Tony Benn a former Labour party member of British Parliament explains how the current corporate take-overs of democracies, economies and governments using international trade agreements and by demoralizing the populations using debt as a weapon of fear.

A MUST WATCH for any one concerned about the future of western democracies in this time of growing Corporatism and the socialization of corporate debt.
March 25, 2010

Kevin said:

I don't understand...
How's a pirated mp3, movie or software installation going to bring down a plane?

Someone needs to call this out - in no way should border police also be copyright police; that's not their job! Someone needs to rethink this before border services are so overwhelmed that they start making deadly mistakes....
July 25, 2010

bobobobobo said:

...
how do they propose to distinguish what can be considered 'pirated' from 'legally obtained' just by scrolling through an mp3 player? the only way I can think of would be to search for websites in the lists, but even that wouldn't cover the thousands of completely legal free downloads that are available. this legislation is so poorly thought-through.
January 23, 2012

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