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G8 leaders ACTA up - July 10, 2008

When not discussing the world food crisis over an 18 course meal, the leaders of the world's major industrialized economies found time during the G8 Summit in Hokkaido, Japan this week to issue a Declaration on the World Economy. Which must be fun, considering that large swaths of the global economy, not to mention humanity, are not represented in the group, such as China, India, Australia and the entire continent of South America. Included in the declaration was a commitment, in principle at least, to completing negotiations on the proposed Anti-Counterfeiting Trade Agreement (ACTA) by the end of this year.

The relevant paragraphs from the declaration:

17. Effective promotion and protection of IPR are critical to the development of creative products, technologies and economies. We will advance existing anti-counterfeiting and piracy initiatives through, inter alia, promoting information exchange systems amongst our authorities, as well as developing non-binding Standards to be Employed by Customs for Uniform Rights Enforcement (SECURE) at the World Customs Organization. We encourage the acceleration of negotiations to establish a new international legal framework, the Anti-Counterfeiting Trade Agreement (ACTA), and seek to complete the negotiation by the end of this year. We will promote practical cooperation between our countries to develop tools to combat new techniques in counterfeiting and piracy and spread best practices. We reaffirm our commitment on government use of software in full compliance with the relevant international agreements and call on other countries to follow our commitment.

18. Firmly believing that an efficient and well-functioning IP system benefits countries at all stages of development, we:
(a)reaffirm the importance of global patent harmonization and expanding international patent collaboration, including accelerated discussions on the Substantive Patent Law Treaty; and
(b)welcome the progress achieved in the G8 technical assistance pilot plans as well as the launch of additional pilot plans and joint outreach programs for public awareness in these countries.

Sounds important, although we don't actually know what's in ACTA since the governments involved in negotiating it have done so largely behind closed doors. According to William Patry, a notable copyright expert and senior copyright counsel for Google, the U.S. Trade Representatives doesn't plan to present the agreement to Congress for approval, apparently on grounds that it will not require any significant changes to U.S. law.

All we know of the proposed agreement is what was in a draft discussion paper prepared by the Office of the USTR last fall, which turned up on Wikileaks back in May. Patry, however, points to suggestions for what to include submitted to the USTR somewhere along the way by the RIAA, which must have taken a big ol' hit off that crack pipe before preparing its wish list.

Among the RIAA's recommendations:

Parties shall:
…
2. Provide criminal sanctions for any act of copyright infringement that takes place on a commercial scale, including in the online environment, regardless of whether such acts are undertaken with a financial incentive.
3. Make it a criminal offense to import or export, manufacture, sell or otherwise distribute a device or system, or a component of a device or a system, knowing or having reason to know that the device or system is primarily used or designed to circumvent technological protection measures used in conjunction with materials protected by intellectual property rights.
…
6. In territories with high rates of production of pirated optical discs, provide for a system of licensing prior to the manufacture or export of optical discs, as well as the import or export of manufacturing equipment, and manufacturing materials, including optical grade polycarbonate, "stampers" and "masters."
...
Parties shall:
1. Provide exclusive rights under copyright to unambiguously cover Internet use.
2. Establish appropriate rules regarding liability of service/content providers:
(a) Establishing primary liability where a party is involved in direct infringement; and ensure the application of principles of secondary liability, including contributory liability and vicarious civil liability, as well as criminal liability and abetting if appropriate.
(b) Establishing liability for actions which, taken as a whole, encourage infringement by third parties, in particular with respect to products, components and/or services whose predominant application is the facilitation of infringement.
...
4. Require internet service providers and other intermediaries to employ readily available measures to inhibit infringement in instances where both legitimate and illegitimate uses were facilitated by their services, including filtering out infringing materials, provided that such measures are not unduly burdensome and do not materially affect the cost or efficiency of delivering legitimate services;
5. Require Internet service providers or other intermediaries to restrict or terminate access to their systems with respect to repeat infringers.

Since many of the RIAA's proposals, such as mandatory filtering and cutting off repeat offenders, have already been considered and rejected by the European Union, or been met with ferocious resistance where they've been proposed, as in France and the U.K., it seems unlikely that the EU members of the G8 would accept them in any final agreement, although stranger things have happened.

They would also unquestionably require massive and highly controversial changes to U.S. law on ISP liability, filtering, the criminal code and probably the First Amendment, among other things, which, if the USTR is to be believed, probably are not in the cards. Although again, stranger things have happened.

Still, you have to admire the chutzpah behind the "no polycarbonate for you" if you happen to live in Malaysia or someplace like that, idea.

The USTR and the rest of the G8 could easily clear up the confusion, of course, simply by being more transparent about the negotiations, or by bringing ACTA into existing trade bodies, like WIPO or the WTO, where NGOs and others can at least monitor the process. 

Not that I'm holding my breath.

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