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    ACTA Negotiations, Day Two: What's On Tap

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    Wednesday November 04, 2009
    As ACTA negotiators head into day two of the Seoul, Korea meetings, the global response to the Internet provisions in the chapter (the issue from day one) has been remarkable.  Articles and postings from around the world (Germany, Italy, Sweden, UK, New Zealand, the Netherlands, U.S.Germany, Italy, Hungary, the Netherlands), coverage from some of the most popular websites (Gizmodo, ReadWriteWeb, TorrentFreak, BoingBoing, Slashdot), as well as expert commentary (EFF, Electronic Frontier Australia) has been swift and universally concerned with ACTA.

    According to the official agenda, in a few hours talks will continue on the Internet provisions and then move into the criminal provisions chapter.  I discussed details of the Internet chapter yesterday, in a post that highlights the creation of a Global DMCA that would severely limit the ability for signatories to use the flexibility found in the WIPO Internet treaties.  Moreover, the provisions would pave the way for a globalized three-strikes and you're out system, as ISP safe harbours would be premised on policies to terminate subscribers in appropriate circumstances. 

    It is worth highlighting the ongoing criminal provisions as well.  As previously leaked, the U.S. and Japan supplied the initial text for this chapter.  Their proposal included:


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    The ACTA Internet Chapter: Putting the Pieces Together

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    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.


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    Study Finds Canadian C-61 Anti-Circumvention Provisions Unconstitutional

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    Tuesday October 27, 2009
    A new academic article published in the Journal of Information Law and Technology by Professor Emir Aly Crowne-Mohammed and Yonatan Rozenszajn, both from the University of Windsor, concludes that the anti-circumvention provisions found in Bill C-61 were unconstitutional.  The authors argue that the DRM provisions were "a poorly veiled attempt by the Government to strengthen the contractual rights available to copyright owners, in the guise of copyright reform and the implementation of Canada’s international obligations. Future iterations of Bill C-61 that do not take the fair dealing provisions of the Copyright Act (and the overall scheme of the Act) into account would also likely to fail constitutional scrutiny."
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    Entertainment Software Association Suggests Using ACTA To Force Canadian DMCA

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    Wednesday September 23, 2009
    The US-EU Working Group on IPR Enforcement is holding a meeting in Washington today and Canada has apparently been a regular topic of discussion.  Judit Rius Sanjuan of KEI is twittering from the event, but the one report that was most troubling was from Meredith Fllak.  She indicated that the Entertainment Software Association suggested using the Anti-Counterfeiting Trade Agreement as a new method to force Canada to implement DMCA-style legislation.
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