Article
|
April 2010
Draft
|
July 2010
Draft
|
Article 1.4: Privacy and
disclosure of information
|
There was a placeholder stating
an article needed to be drafted.
|
There is now text of the article.
|
Article 1.X: (General Principles)
|
No such article.
|
Aus/NZ/Sing/Can are proposing a
generic set of principles for enforcement of IP, including
social/economic welfare, transfer of technology etc.
|
Article 2.X.1: General
Obligations with respect to enforcement
|
No such paragraph.
|
General statement regarding
effective and expeditious action, and may not create barrier to
trade.
The text is copied from article 41.1 of TRIPS.
|
Article 2.X.4: General
obligations with respect to enforcement
|
Place holder for government
exceptions/liability.
|
US has proposed text allowing
for exemptions for governments based on fair compensation.
|
Article 2.X.6: General
obligations (rights of the defendant and third parties)
|
Obligation to ensure the
protection of the rights of the defendant and third parties appeared
only under the criminal enforcement section.
|
This obligation has been moved
to general obligations
|
Article 2.2.1: Damages
|
A more rigid calculation of
damages as: compensatory to injury caused to right holder OR accounting
of profits.
|
More flexible approach to how
damages are calculated based on taking into account a number of factors.
|
Article 2.2.3: Damages (April
2010 draft)
|
Even unknowing infringers could
be liable for accounting of profits or damages, and these could be
statutory amounts. (Based on the January 2010 leak this was an EU
proposal)
|
Removed.
|
Article 2.2.5: Damages (legal
fees)
|
There were a 2 options proposed
(which was a streamlining from the Jan 2010 leak).
|
A single clear statement that
attorney and court fees can be ordered payable.
|
Article 2.6: Application by
rights holder
|
Formerly 2 options for the scope
of border measures on application by rights holder.
|
One of the few areas where
another option has been put on the table. The
US/J/NZ/Can/Sing/Aus/CH/Mex have proposed a 3rd option (option #2 in
the July draft) which clearly makes in-transit measures optional.
|
Article 2.14.1: Criminal
Enforcement
|
Broader definition of what
constitutes a “commercial scale”.
|
Specific wording suggested
that would exclude (EU) or allow to be excluded (US) end users
from
being involved in “commercial scale” operations.
|
Article 2.18.3, 3bis & 3ter:
Enforcement Procedures in the Digital Environment (ISP safe harbour
provisions)
|
|
A lot of progress was made, with
ISPs qualifying for safe harbour more easily.
|
2.18.3(a): Obligations of ISP
non-liability
|
ISP non-liability seemed
optional for certain routine actions or those outside their control.
|
Everyone (except CH) now agrees
that ISPs will not be liable at least for some routine actions or those
outside their control (the details of which are mostly similar from the
April to July draft).
|
2.18.3(b) Conditions for ISP
non-liability in cases of temporary storage
|
The wording describing this
temporary storage scenario was more vague in the April draft, was
presented in several options and had more conditions associated with it.
|
Temporary storage is only
conditioned on the ISP removing the material after notice that the
offending material has been removed from the originating site.
|
2.18.3(c) Conditions for ISP
non-liability in cases of linking users to offending material
|
As in the case of temporary
storage above, in the April draft these conditions were presented in
several options and had more conditions associated with it.
|
When linking an ISP will not be
liable so long as they fulfill conditions:
1) ISP must not get direct financial gain
2) ISP must remove access to material once they get notice of alleging
infringing material and there is no refutation from subscriber who
posted the material
3) ISP must not have actual knowledge of the infringement
|
Article 2.18.4: Enforcement
Procedures in the Digital Environment (Anti-circumvention provisions)
|
Unauthorized circumvention was
prohibited
|
Substantially less circumvention
is prohibited in the July draft:
-Only unauthorized circumvention which is carried out knowingly (or
with reasonable grounds to know) is prohibited
- “unauthorized circumvention of copy control” (per footnote 56)
need not be prohibited
|
Article 2.18.X: Exceptions
|
Formerly 2 options regarding
exceptions, the second of which was broader and did not contain a
limitation precluding impairing legal adequacy.
|
ACTA parties have largely agreed
on this wording to allow for exceptions which don't impair
adequacy/effectiveness of protection.
|
Subscribe to this comment's feed
