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ACTA-vision - September 17, 2008

Earlier this week, a consortium of over 100 public interest groups from around the world issued a call for the governments involved in negotiating the proposed Anti-Counterfeiting Trade Agreement to disclose the draft text of the treaty, something the governments--including the U.S. government--have so far refused to do. One of the group's involved in issuing the call for transparency, the Center For Democracy & Technology, has now posted a useful brief outlining the groups' substantive concerns regarding what little is known of the treaty's contents and with the secrecy surrounding its negotiation.

Among CDT's concerns is the possibility that the treaty could end up creating international obligation on issues that remain unsettled in U.S. copyright law, notwithstanding assurances by the Office of the U.S. Trade Representative that ACTA will not alter U.S. law:

For example, the question of when device or service providers should be held secondarily liable for copyright infringement committed by their users is a hotly debated area with multiple stakeholders and perspectives. So are questions relating to whether service providers should monitor, police, and share information about their customers; the scope of "safe harbor" provisions in the Digital Millennium Copyright Act (DMCA); and the application of the DMCA's anti-circumvention provisions. An ACTA "Discussion Paper" leaked and posted on wikileaks in May suggested that negotiators were at least considering provisions that could touch on these kinds of questions. Thus, ACTA could well be used to bolster certain arguments in important ongoing legal debates.

Concerns that ACTA might wade into complex and controversial issues are reinforced by comments submitted to USTR by interested parties. For example, the Recording Industry Association of America (RIAA) suggested including a number of provisions relating to potential liability and legal obligations for ISPs and other intermediaries. Among the suggestions was a requirement that ISPs employ technological filters to weed out infringing material; the imposition of liability for providing "deep links" to infringing material; and the imposition of liability on ISPs that fail to respond to takedown notices within 24 hours. The comments of the Motion Picture Association of America (MPAA) and the Pharmaceutical Research and Manufacturers of America (PhRMA) likewise suggested that ACTA should address matters like secondary liability and the role of ISPs.

I would go farther. Many of the same issues remain unsettled around the world, and are currently the subject of live controversies in any number of countries.

To cite just a couple of current examples, from two countries involved in the ACTA negotiations:

• Australia: Reversing an earlier prohibition, it is now legal in Australia to circumvent region coding on DVDs. The government is also considering a measure that would permit circumvention of access control technologies on DVD (i.e. CSS) for purposes of format or place-shifting. If that were to go forward it would mark a sharp difference between Australian law and that of the U.S., where the DMCA prohibits circumvention for any reason.

• France: A proposed French law, the Promoting the Distribution and Protection of Creativity on the Internet Act, which would, among other things, authorize cutting off Internet access for people found to be repeat downloaders or infringing content, has been "frozen:" by the European Union under the EU's Technical Regulations Information System (TRIS). The System requires that any such proposed technical regulations must be submitted for comment and possible revision before they can be enacted into national law. France has now submitted its draft legislation (English-language text of the bill can also be found through the link) where it awaits comment and, most likely, significant opposition.

To say that digital copyright law is unsettled in the U.S. is an understatement. It remains controversial around the world and, if anything, is getting more controversial with time, as countries begin to revisit areas previously considered settled.

According to the USTR's most recent (Aug. 4, 2008) Fact Sheet on ACTA, however, the governments involved remain determined to complete the negotiations by the end of this year.
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