The ACTA Internet Chapter: Putting the Pieces Together
Tuesday November 03, 2009
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.

If accurate (and these provisions are consistent with the U.S. approach for the past few years in bilateral trade negotiations) the combined effect of these provisions would dramatically reshape Canadian copyright law and to eliminate sovereign choice on domestic copyright policy.  Having just concluded a national copyright consultation, these issues were at the heart of thousands of submissions.  If Canada agrees to these ACTA terms, flexibility in WIPO implementation (as envisioned by the treaty) would be lost and Canada would be forced to implement a host of new reforms (this is precisely what U.S. lobbyists have said they would like to see happen).  In other words, the very notion of a made-in-Canada approach to copyright would be gone.

The Internet chapter raises two additional issues.  On the international front, it provides firm confirmation that ACTA is not a counterfeiting treaty, but a copyright treaty.  These provisions involve copyright policy as no reasonable definition of counterfeiting would include these kinds of provisions.  On the domestic front, it raises serious questions about the Canadian negotiation mandate.  Negotiations from Foreign Affairs are typically constrained by either domestic law, a bill before the House of Commons, or the negotiation mandate letter.  Since these provisions dramatically exceed current Canadian law and are not found in any bill presently before the House, Canadians should be asking whether the negotiation mandate letter has envisioned such dramatic changes to domestic copyright law.  When combined with the other chapters that include statutory damages, search and seizure powers for border guards, anti-camcording rules, and mandatory disclosure of personal information requirements, it is clear that there is no bigger IP issue today than the Anti-Counterfeiting Trade Agreement being negotiated behind closed doors this week in Korea.

Update: Further coverage from IDG and Numerama. 

Update II: InternetNZ issues a press release expressing alarm, while EFF says the leaks "confirm everything that we feared about the secret ACTA negotiations." Electronic Frontiers Australia provides an Australian perspective on the ACTA dangers.

Update III: There are additional articles and postings from around the world (Germany, Italy, Sweden, UK, New Zealand, the Netherlands, U.S., Germany, Italy) as well as coverage from some of the most popular websites (Gizmodo, ReadWriteWeb, TorrentFreak, BoingBoing, Slashdot).

Update IV: See additional posts on Day two of the ACTA talks (Criminal provisions) and Day three (transparency).