>> Thursday, November 5, 2009
You probably are not aware of the intellectual property treaty being negotiated in Seoul South Korea. Its called the Anti-Counterfeiting Trade Agreement. The reason that you may not have heard of it is that its supposed to be secret. Why? National Security concerns of course. Thats right, a treaty that affects millions is being negotiated in secret apparently without the input of views that might be hostile to the draconian enforcement of copyright law.
Im not an IP lawyer nor a computer science expert but there are a number of issues that bother me about this. A few of the leaked provisions,
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.
The general response among consumer protection and fair use supporters has been very critical. The main concerns are the adoption of a three strikes and your out policy recently adopted in france. The core of the policy is a law that requires ISPs to disconnect whole households if one member is accused -- without evidence or trial -- of three copyright infringements. Accused. You and your whole family may lose the Internet with out substantive review.
Let's reflect on what this means: First, the US government appears to be pushing for Three Strikes to be part of the new global IP enforcement regime which ACTA is intended to create – despite the fact that it has been categorically rejected by the European Parliament and by national policymakers in several ACTA negotiating countries, and has never been proposed by US legislators.
Second, US negotiators are seeking policies that will harm the US technology industry and citizens across the globe. Three Strikes/ Graduated Response is the top priority of the entertainment industry. The content industry has sought this since the European office of the Motion Picture Association began touting Three Strikes as ISP "best practice" in 2005. Indeed, the MPAA and the RIAA expressly asked for ACTA to include obligations on ISPs to adopt Three Strikes policies in their 2008 submissions to the USTR. The USTR apparently listened and agreed, disregarding the concerns raised by both the US's major technology and telecom companies and industry associations (who dwarf the US entertainment industry), and public interest groups and libraries.
How does this fit with the oft-repeated statement of the USTR that ACTA will not change US law, which justified the decision to negotiate ACTA as an Executive Agreement outside of regular US Congressional oversight measures? That remains to be seen.
In addition, there is a removal of the ISP's immunity from liability for the alleged copyright violations that occur over their pipelines if they fail to follow through on the disconnects. Meaning that your not going to get much a chance because the isps wont want to risk the litigation, especially since the potential damages might be more than the value of U.S. GDP.
What has been leaked is the MPAA and RIAA dream bill that stands in contradiction to current U.S. and E.U. law. Under the leaked regeme the ISPs would also have to adopt the notice and take down approach that is used to censor legitimate fair use on sites like you tube and flickr. The shepard fairey poster of obama with hope under it would have to be taken down from wherever it was posted online as the AP would surely allege that it is an infringer.
One of the huge issues here is that the secrecy makes it impossible to lobby or even know exactly what the bill contains. The reason for this secrecy,
According to IDG, the leaked European Commission memo also states that the US Internet chapter is "sensitive due to the different points of view regarding the internet chapter both within the Administration, with Congress and among stakeholders (content providers on one side, supporters of Internet freedom on the other)."
Cmon Obama, end the secrecy. If the doomsday reports of the treaty's contents arent true the public should know. if they are true they should know this too. These represent major changes in U.S. law and the public isnt getting any input here as this is being negotiated under an executive agreement signed by president obama. There isnt a more important issue in IP and copy right.