For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Wednesday, 21 April 2010

Time to party, as ACTA hits town

Today, as the cloud of Icelandic volcanic ash disperses from British airspace, the new day dawned upon an long-awaited apparation, the draft of ACTA, the Anti-Counterfeiting Trade Agreement. You can read it in all its glory here. Options suggested by unidentified participant countries are indicated in the text by square brackets.

Right: plumes of hot air over Europe: volcanic eruption or diplomatic activity?

The IPKat notes that ACTA is a good deal less radical, and much less sinister, than had at first been feared in result of the exclusionary and secret manner in which it was initiated and originally drafted. He feels that much if not all of it could have been negotiated and drafted in much the same way by the same industrialised countries even in the absence of the secrecy which attended it. Although a substantial widening of the group of nations involved might have paralysed the process by allowing alternative views to be expressed (none of the BRIC countries was invited to the conference table), it might be cynical to suggest that the inclusion of Morocco and Mexico among the ACTA nations was no more than mere tokenism.

Background and history of ACTA here

What others say about ACTA

"ACTA treaty deputizes Internet providers as copyright cops" (CNET News, here):

"Internet service providers could become copyright Net-cops encouraged to block
access to suspected pirate Web sites ....

One section of the digital copyright treaty says that Internet providers "disabling access" to pirated material and adopting a policy dealing with unauthorized "transmission of materials protected by copyright" would be immune from lawsuits. If they choose not to do so, they could face legal liability. ... Much of the language in ACTA has been anonymously proposed by one nation or another but is not final, and it's not clear whether the "disabling access" section will remain. Another nearby paragraph does say, in a nod to privacy concerns, that governments should ot "impose a general monitoring requirement" on broadband providers. The language does appear to go further than U.S. laws governing broadband providers and copyright.

... The European Union published the draft text ... along with a statement from EU Trade Commissioner Karel De Gucht saying concerns about the document's sweep were "unfounded." De Gucht noted, for instance, that suspected language such as a "three strikes" rule for broadband customers and a "gradual response" for suspected infringement was not in the ACTA draft.

In general, ACTA's proposals seek to export controversial chunks of U.S. copyright law to the rest of the world. The Digital Millennium Copyright Act's "anti-circumvention" section, which makes it illegal to bypass copy protection even to back up a Blu-Ray disc, is in there. So is the No Electronic Theft Act's concept of making it a crime to copy a sufficient quantity of software, music, or videos -- even if no money changes hands.

... the public version of ACTA doesn't prohibit border guards from searching travelers' gadgetry for infringing files, nor does it appear to require it. ..."
"ACTA arrives (and it's gotten a tiny bit better)" (Ars Technica, here):
" ... ACTA is more like a select club of countries: Australia, Canada, the European Union countries, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States of America. But the treaty it develops is really just the next rung on a ladder stretching back to 1886, and it will certainly be wielded like a weapon on the rest of the world in the future.

The text is not final—that is due to happen later this year—so if you want to see changes made, the time to act is now.

... The EU has already made its case that ACTA won't affect ordinary citizens. And it takes particular aim at the groups which have loudly condemned ACTA: "The negotiation draft shows that specific concerns, raised in particular by the civil society, are unfounded. ... ACTA will not hamper access to generic medicines."

Under ACTA, ISPs are protected from copyright lawsuits so long as they have no direct responsibility for infringement. ... however. First, the entire ISP safe harbor
is conditioned on the ISP "adopting and reasonably implementing a policy to address the unauthorized storage or transmission of materials protected by copyright." (This is much like existing US law.)

... New to this draft is an option, clearly targeting European law, that would explicitly allow Internet disconnections. Countries will be allowed to force ISPs to "terminate or prevent an infringement" and they can pass laws "governing the removal or disabling of access to information. So, basically, Internet disconnection and website blocking. ... Second, the ISP immunity is conditioned on the existence of "takedown" process. ... This will strongly affect countries like Canada, which have no such system.
... ACTA would ban "the unauthorized circumvention of an effective technological measure." It also bans circumvention devices, even those with a "limited commercially significant purpose." Countries can set limits to the ban, but only insofar as they do not "impair the adequacy of legal protection of those measures." This is ambiguous, but allowing circumvention in cases where the final use is fair would appear to be outlawed.

Fortunately, a new option in this section would allow countries much greater freedom. The option says that countries "may provide for measures which would safeguard the benefit of certain exceptions and limitations to copyright and related rights, in accordance with its legislation."

... The draft text contains a "de minimis" provision that allows countries to exclude
from ACTA enforcement " Small quantities of goods of a non-commercial nature contained in travelers' personal luggage."

... ACTA contains "ex officio" language that allows customs officials and border agents to hold infringing shipments of goods without needing a rights holder to complain first. Several options are still being considered in the draft, but all give the authority's rights to "act upon their own initiative" in releasing suspected goods at customs checkpoints.

... Think twice about camcording a movie off the big screen. ACTA now requires all signatories to make this practice a criminal act, not merely a civil matter. The draft does note that "at least one delegation has asked for the deletion" of this section, though, so it may be an easy target for removal before the final version.

... Several sections of the ACTA draft show that rightsholders can obtain an injunction just by showing that infringement is "imminent," even if it hasn't happened yet.

... ACTA requires criminal penalties against "willful copyright infringement" when done "on a commercial scale." Early drafts explicitly mentioned online piracy, and that still seems to be in view. Though this section remains under negotiation, the draft shows that this may apply to infringements "that have no direct or indirect motivation of financial gain."

... At least one enterprising ACTA country has managed to insert this interesting line into the section on "enforcement procedures in the digital environment": "Those measures, procedures, and remedies shall also be fair and proportionate." A dig at Internet disconnections and three strikes remedies, which are often criticized on these grounds? Who knows—and it's still under debate".
"EU Commission releases anti-counterfeiting plan" (Forexyard here):

" ... "This text shows that the overall objective of ACTA is to address large-scale infringements of intellectual property rights which have a significant economic impact," the Commission said in a statement. "ACTA will by no means lead to a limitation of civil liberties or to 'harassment' of consumers."

The Commission, which is in charge of trade policy for the 27-nation EU, said no party to the proposed deal had suggested that governments should introduce a compulsory "3 strikes" rule to fight copyright infringements and Internet piracy".
"Merpel's favourite bit of ACTA is Article 1.1, which is all about partying:

"Nothing in this Agreement shall derogate from any international obligation of a Party with respect to any other Party under existing agreements to which both Parties are party".
This reminds her of the Contract Scene in the Marx Brothers' Night at the Opera:
"Driftwood: ... Now pay particular attention to this first clause because it's most important. It says the, uh, "The party of the first part shall be known in this contract as the party of the first part." How do you like that? That's pretty neat, eh?
Fiorello: No, it's no good.
Driftwood: What's the matter with it?
Fiorello: I don't know. Let's hear it again.
Driftwood: It says the, uh, "The party of the first part shall be known in this contract as the party of the first part."
Fiorello: (pausing) That sounds a little better this time.
Driftwood: Well, it grows on ya. Would you like to hear it once more?
Fiorello: Uh, just the first part.
Driftwood: What do you mean? The party of the first part?
Fiorello: No, the first part of the party of the first part.
Driftwood: All right. It says the, uh, "The first part of the party of the first part shall be known in this contract as the first part of the party of the first part shall be known in this contract" - look, why should we quarrel about a thing like this? We'll take it right out, eh?".

4 comments:

Annsley Merelle Ward said...

I am concerned about Article 2.5 regarding Provisional Measures that states that:

* each Party shall provide that its judicial authorities shall have the authority at the request of an applicant to issue an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right.

* An interlocutory injunction may also be issued, under the same conditions, against an [infringing] intermediary whose services are being used by a third party to infringe an intellectual property right.

The first part is nothing new, but the second part needs further consideration. It says that "under the same conditions", so I assume that implies those conditions are "to prevent any imminent infringement", i.e. the infringement has not happened but assumingly its threatened. Therefore, this means that the Parties must ensure there is judicial authority for granting an interim injunction against an ISP to stop an event caused by a third party from occurring - an event, which in most cases, the time, place etc may not be known. This would essentially require the ISP to police the entirety of their service in a stakeout to ensure this infringing event does not occur to ensure it complies with the terms of the injunction. It is not as simple as arguing "well, if the ISP has a IP address then they can easily police activity from this address and prevent an infringing activity." The main subject of the injunction will be in reference to an individual (one would think) and not an IP address and everyone knows individuals can conduct infringing activities over a variety of IP addresses!

In addition the use of "[infringing]" is confusing. An ISP cannot be said to be infringing prior to the actual "imminent infringement" actually taken place, surely?

Or does the phrase "under the same conditions" mean something other than in relation to the foregoing sentence?

And what does "imminent mean"? One would assume that it is greater than showing a mere "threat" but how does one even show "imminent"?

Questions galore!

Niel Ackermann said...

I find the concept of an infringing intermediary [with or without square brackets] intriguing. Article 11 of the Enforcement Directive does not require an intermediary to be infringing. It says: Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right.

Surely an infringing intermediary is just a joint tortfeasor?

Fiorello said...

Ha, ha, ha, ha, ha. You can't fool me. There ain't no Anti-Counterfeiting Trade Agreement.

Francis Davey said...

Annsley - I see your problem. I don't think "the same conditions" can meant that, because of the tense of what follows. "whose services are being used by a third party" is in the present tense and implies present infringement (that would explain also the use of the present participle "infringing" though that is only an option). Perhaps "the same conditions" means the same conditions as whatever conditions are imposed for anticipatory injunctions.

It is perhaps a shame we don't have a future participle in English.

Mind you the first limb (anticipatory injunctions) does not define who the subject of such an injunction might be and in many cases an ISP may also be an infringer (albeit usually not liable for damages).

Who can say? The draft is so "pick-and-mix" at the moment, any serious analysis is very difficult.

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