We recently reported that an updated version of ACTA (Anti-Counterfeiting Trade Agreement) has leaked online. We are currently pouring over the contents of the forbidden text (since heaven forbid legal procedures such as FOIA requests actually get close to penetrating this fortress of security) and have already found some interesting items within the text.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
We should note that this is an updated version of the text and newer than the public version of the text. This is updated to the 1st of July of 2010, so it’s very new. We should also note that we are, by no means, legal experts in international law, but we are simply reading through this with great interest.
Will my iPod Get Searched At the Border
One of the concerns about ACTA was that it would oblige border security to do digital frisking – that is, searching through your iPods, cell phones and laptops for potentially pirated material. Very scary stuff indeed considering what kind of implications that would bring under the light of civil rights. What does the latest version of the text say?
Section 2: Border Measures […]
1. This section sets out the conditions for action by the competent authorities when goods are suspected of infringing intellectual property rights, within the meaning of this agreement, when they are imported, exported, in-transit or in other situations where the goods are under customs supervision.
2. For the purposes of this section, “goods infringing an intellectual property right” means goods infringing any of the intellectual property rights covered by TRIPS.
So the question is, what is covered in TRIPS that could be related to this concern? According to TRIPS:
Article 14
Protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations1. In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorization: the broadcasting by wireless means and the communication to the public of their live performance.
2. Producers of phonograms shall enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.
There is, however, a De Minimis Provision which says:
Parties may exclude from the application of this Section small quantities of goods of a non-commercial nature contained in travelers’ personal luggage.
So, the question becomes, what if there’s a business laptop in question? Additionally, what if countries choose not to enact this provision in the first place? That would still be a very big concern on this front.
Will people be Criminally Liable?
That would be found in article 2.14:
1. Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights on a commercial scale.
So, in this particular article, criminal liability is only in commercial scale. This includes what is found a little later on in the agreement:
[3. Each party shall provide for criminal procedures and penalties to be applied against any person who, without authorization of the holder of copyright [or related rights] in [Mor: an audiovisual work, including] a cinematographic work [Can: or the theatre manager] [knowingly] [US: uses an audiovisual recording device to transmit or make] a copy of the cinematographic or other audiovisual work, or any part thereof, from a performance of the cinematographic or other audiovisual work in a cinematographic work exhibition open to the public.]
The square brackets mean that those particular lines are in dispute. In the case where it starts with, say, “Can” for Canada, it’s a provision brought forth by that country.
Will criminal laws apply to online usage?
Well, lets take a look at section 4 entitled “[Special Measures Related to Technological Enforcement of Intellectual Proprty in the Digital Environment]”
Each Party shall ensure that enforcement procedures, to the extent set forth in the civil and criminal enforcement sections of this Agreement, are available under its law so as to permit effective action against an acr of [US/Aus/NZ/Can/Sing/MX: trademark, copyright or related rights][J/EU/CH: intellectual property rights] infringement which takes place [US/Sing/MX: by means of the internet][EU/CH: in the digital environment] , including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.
Unfortunately, I can’t confirm either way on this simply because the text is so complicated (anyone else welcome to confirm or deny this of course)
Notice and Takedown
In the US, it might not mean much now since it has been a part of law for so long, but in Canada, this is such a huge issue because there is an informal notice-and-notice regime. So what does ACTA demand? There’s a number of provisions that suggest that ISPs would have safe harbor provisions. Unfortunately, there are strings tied to this:
(b) that the application of the provisions of subparagraph (a)(ii) is conditioned on an online service provider [J: take appropriate measures] expeditiously [Can: or within a defined period of time] [J: such as those to remove or disable] removing or disabling access to material upon [J: obtaining actual knowledge of the infringement or having reasonable grounds to know that the infringement is occurring] receipt of a legally sufficient notice of alleged infringement concerning material that has previously been removed from the originating site.
In short, it’s a notice and takedown provision (ala global DMCA).
Anti-circumvention
This section pretty much speaks for itself:
[EU/J/Mex/Mor.Aus: 4. Each Party shall provide adequate legal protection and effective legal remedies [US: at least] against the circumvention of effective technological measures that [US: are used by, or at the direction of,] authors, and performers and producers of phonograms use in connection with the excercise of their rights and that restrict acts in respect of their works performances, and phonograms, which are not authorized by the authors, the performers of the producers of phonograms concerned or permitted by law.
Note: some countries want to strike a few words out here and there in this.
There are other sections, but it’s pretty par for the course. You can’t manufacture, import or distribute anything that circumvents a digital lock.
What about exceptions?
Article 2.18.X
Each Party may adopt and maintain exceptions or limitations to measures [Can: provisions] implementing paragraph (4), so long as they do not significantly impair the adequacy of legal protection of those [Can: technological] measures or the effectiveness of legal remedies for violations of those measures.
The question here is, is this a jab at any exceptions? This is a new loophole after all.
Propaganda
One has to wonder, why use the term “Public Awareness” when “Propaganda” is more appropriate?
Article 4.4: Public Awareness
Each Party shall [take [J:necessary] [Sing: such][AUS: apprpriate]] [US: promote the adoption of appropriate] measures [Sing: as it deems appropriate] to enhance] [NZ: will promote] [US/MX: including educational projects, designed to raise] public awareness of the importance of [J: the protection of ][US: protecting] intellectual property rights and the detrimental effects of intellectual property right infringement, including educational [J: and dissemination] projects. [US/CAN/MX: Such measures may include joint initiatives with the private sector.]
In other words, they want to make it law that people must be told one download means one lost sale to name one example.
Additional Commentary
This is, by no means, a thorough review of ACTA’s current leaked text. There’s so many provisions being negotiated, that it makes an already complicated text even more complicated. One thing to note, we didn’t uncover any three strikes law in this version of the text. There’s no graduated response or references to such a provision that we could find in this text. That could mean a number of things: 1. We missed it and it’s buried in the text so well, that we can’t immediately find it or 2: After outside pressure, that provision was removed.
Still, if the anti-circumvention provisions is anything to go by, ACTA sort of looks like an attempt to Americanize international law because so much of this is modeled off of the DMCA. In any event, it was a very interesting read to say the least.
Further reading: Source for the most recent ACTA text
Update: Special thanks to a Slashdot member for transcribed non-PDF Wiki-format version of the text.
Drew Wilson on Twitter: @icecube85 and Google+.
