ACTA One, ACTA Two, ACTA Three…

Yet another in the series of drafts of ACTA, the Anti-Counterfeiting Trade Agreement, was issued a couple of weeks ago.  ACTA has gone through many revisions — both official and leaked — since the first “discussion paper” appeared on WikiLeaks in 2008.  I finally picked my head up from an intense period of project work and took a look.

The draft dated 15 November is alleged to be “final” but is marked “Subject to Legal Review.”  There is much skepticism about the finality of this draft, given all the controversy that surrounds it.  Much of the controversy has been about the alleged secrecy of the negotiations and whether the participants are seeking to short-circuit both the normal process of international treaty ratification, which involves legislative bodies such as the US Congress, and established international bodies such as WIPO and WTO.  Undoubtedly those involved recall the length of time it took to get the WIPO Copyright Treaty of 1996 enacted: at least a decade, including the publishing of the so-called Green Paper in 1994, the US Digital Millennium Copyright Act of 1998, the European Union Copyright Directive in 2001, and the latter’s enactment in various laggard EU states in more recent years.

The main thrust of ACTA is intellectual property as it applies to physical goods — a problem whose economic impact, according to a 2007 OECD study, is in the hundreds of billions of dollars annually, exceeding even the most expansive estimates of digital copyright infringement by orders of magnitude.

For our purposes, the action in ACTA is primarily in Section 5: Enforcement of Intellectual Property Rights in the Digital Environment.  The bulk of this section is taken up with language intended to mimic the law against circumventing Technical Protection Measures (TPMs) such as DRM, which is enacted in the US DMCA.  (It “improves” upon the latter by supplying a more detailed definition of “effectiveness” regarding TPMs.  This implies a long-overdue and welcome recognition that the definition is too vague in US law.  However, in my view, the definition given in ACTA — in a footnote, no less — is not much of an improvement.)

The structure of Section 5, as with most of ACTA, is such that its provisions should apply in signatory countries that have no applicable law.  If a country does have applicable law, then that takes precedence, even if the law should say something substantially different from the analogous ACTA provision.  In other words, ACTA looks like it is supposed to function as a “safety net” to prevent countries without sophisticated IP protection regimes to become havens for infringement and related technology — which we have seen with such companies as Kazaa and Slysoft.

Section 5 also contains provisions that mimic other parts of the DMCA, including protections on Rights Management Information and requirements that network service providers disclose the identities of subscribers on presentation of legally valid evidence of alleged infringement.

In addition, ACTA contains language that would toughen the definition of secondary liability for digital copyright so that it is effectively lumped in with standards used in criminal law for third-party liability (driving the getaway car, harboring criminals, etc.).  Given that ACTA is primarily directed toward stanching the flow of counterfeit goods across borders, this blunt-instrument approach is perhaps understandable, but it’s wrong to apply the same standards to copyright.  For one thing, there are no analogs to concepts such as Fair Use, Fair Dealing, Private Copying, or Common Carrier Exemptions in the world of physical products such as handbags, designer clothing, or consumer electronics.

Over the course of several iterations, the language of ACTA has been softened.  It now says “may” in places where it used to say “shall,” verbiage has been added about respecting privacy and not impeding electronic commerce, and so on.

Having a single set of rules for everyone in the world makes sense at a conceptual level.  Making those rules reasonable, compatible with existing regimes, and enactable is going to be a tough challenge as ACTA continues to evolve.

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