Anti-Counterfeiting Trade Agreement

[Aszurom]

http://www.michaelgeist.ca/content/view/4510/125/

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]. 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). 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 to be to 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 the treaty is not a counterfeiting trade, 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. Negotations 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).

[Aszurom]

http://www.boingboing.net/2009/11/03...right-tre.html

Secret copyright treaty leaks. It's bad. Very bad.

The internet chapter of the Anti-Counterfeiting Trade Agreement, a secret copyright treaty whose text Obama's administration refused to disclose due to "national security" concerns, has leaked. It's bad. It says:

• * That ISPs have to proactively police copyright on user-contributed material. This means that it will be impossible to run a service like Flickr or YouTube or Blogger, since hiring enough lawyers to ensure that the mountain of material uploaded every second isn't infringing will exceed any hope of profitability.
• * That ISPs have to cut off the Internet access of accused copyright infringers or face liability. This means that your entire family could be denied to the internet -- and hence to civic participation, health information, education, communications, and their means of earning a living -- if one member is accused of copyright infringement, without access to a trial or counsel.
• * That the whole world must adopt US-style "notice-and-takedown" rules that require ISPs to remove any material that is accused -- again, without evidence or trial -- of infringing copyright. This has proved a disaster in the US and other countries, where it provides an easy means of censoring material, just by accusing it of infringing copyright.
• * Mandatory prohibitions on breaking DRM, even if doing so for a lawful purpose (e.g., to make a work available to disabled people; for archival preservation; because you own the copyrighted work that is locked up with DRM)

[Anti-Bunny]

Holy fuck.

Seriously, what the fuck is going on in the White House here?

[kerzain]

I'm not really worried. If a large portion of the internet userbase gets kicked off they'll probably just start a second and better one.

[Calistas]

I like that this gets foisted on the rest of the world, but, IIRC, isn't something that's about to become signed in the US required law changes.

[Kraaze]

I'm not too worked up about this one yet. It's a draft copy of a potential agreement. I'm sure a lot of compromises and watering-down will happen before it gets voted on.

The only thing really troubling to me about this is that we are moving copyright law upstream into the treaty realm which makes it much much harder to revise later if we ever come to our senses.

[playingwithknives]

I'm suprised the politicians and bureaucrats have the time to get off their knees after chugging on corporate cock to complete any of this. Is the entire planet subjective to the whims of a few studios and labels now?

My only suggestion is for them to put an icecube in each cheek. Their masters would prefer that.

[Blackadar]

And we all know that regardless of treaties, US law does take precedence, don't we?

"This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument." Reid v. Covert

[Linoleum]

We are living in the tail end of the golden free age of personal computing. Between the twin titantic concerns of intellectual property rights of major media corporations and cyberwarfare threats for governments, by 2050 you'll be able to tell kids you once hooked up unsecured unregistered computing devices up to a global network running unsigned code and they'll look at you like telling someone now that during the Depression you brought a shotgun with you to school in case you had a chance to shoot some game on the way home.

[Huzurdaddi]

It is about time that this kind of thing was done. That we had considerable law on the books concerning intellectual property that was being flagrantly disregarded was untenable. Either the laws had to be abolished or there had to be actual enforcement.

[Kraaze]

Originally Posted by Blackadar

And we all know that regardless of treaties, US law does take precedence, don't we?

"This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument." Reid v. Covert

It's a little more complicated than that depending on that nature of the treaty, but the simple fact remains that changing a specific law is always going to be easier than the same law change in conjunction with trying to diplomatically convince other treaty signatories that the US alteration of the terms of the treaty is no big deal.

[jellyfish]

According to these laws, if we post links to copyrighted content in this forum, then Tom could be held liable. He could even go to jail! So who is gonna get this thing started?