LibertyVoice

Information on the next round of ACTA negotiations has leaked out with reports that it will be held in Lucerne, Switzerland from June 28 – July 2, 2010.

The Canadian government has posted a French language version of ACTA.  An English version was widely circulated earlier this week, but Canada may have taken the initiative to have it translated.

There is lots of coverage of ACTA in the wake of the official release of the draft text.  Notable comments include:

• Margot Kaminski at Balkanization
• Sean Flynn's analysis at PIJIP
• CCIA response
• Story on NPR
• Rob Pegoraro at the Washington Post
• Ars Technica: ACTA Arrives
• Andres Gaudamuz on ACTA and intermediaries
• Matt Dawes on the Devil in the Details
• David Meyer of ZDNetUK
• Public Knowledge

As the ACTA negotiating countries promised, a draft consolidated text was released earlier today.  Unlike the earlier leaked version which provided specific attribution to country positions, this official version has removed references to those positions, so the text does not state who supports which version of the text.  Those interested in deciphering that bigger picture, should look at the official release alongside the leaked version (text version here).

While there is still considerable disagreement – lots of square brackets indicating areas where the text has not achieved consensus – the countries did make some progress last week in New Zealand. There will be another round of negotiations in June in Switzerland, followed by at least two more rounds in the fall.  The target remains the end of 2010 to conclude a deal, but there will still need to be considerable compromise.  Moreover, the continuing position of the U.S. and E.U. that they will not change their domestic laws will have to change since there are too many inconsistencies for both to be right.

Today's release marks an important development that highlights the value of public pressure.  As politicians and the public demanded greater transparency, the negotiating countries presumably concluded that the issue was becoming a major impediment to concluding an agreement and decided to make it available (the fact that it was already leaked and that the countries standing in the way of transparency were publicly identified were undoubtedly additional considerations).  Moreover, the benefits of public pressure can also be seen in parts of the text.  The near-consensus on a de minimis provision – which was not even included in the initial proposals – reflects a desire to address concerns around personal searches at the border.  Similarly, the removal of the U.S. footnote on graduated response may also reflect public concern and pressure.

Public pressure has helped make ACTA marginally better, but the release of text confirms many of the fears regarding the substance of the treaty.  As discussed below, it would require dramatic changes to many domestic laws with new requirements on statutory damages, injunctions, anti-circumvention rules, and ISP safe harbours.  Many of these provisions are substantive copyright rules, not limited to counterfeiting (as the title of the treaty suggests) nor enforcement (as sometimes claimed). 

Moreover, the institutional issues around ACTA remain a huge concern.  This is explicitly an attempt to circumvent WIPO and the more open, transparent, and inclusive international process.  The implications are very significant for all countries as this undermines the ability for many countries to have their concerns heard.  Instead, many will face demands to comply with a treaty from which they were completely excluded during the negotiation process.

Full analysis of the updated consolidated text will take some time, but a few quick comments on key issues in the text.

The Internet Chapter

The Internet chapter has attracted the most amount of attention in the press and online.  Note that there are still lots of square brackets, including on basic issues such as the scope of the provisions (disagreement over to include patents) and on some issues whether the provisions are required or recommended (ie. shall or may).

ISP Safe Harbour/Liability

The key provision – and the most contentious – is the ISP safe harbour provision.  At the moment, there is even disagreement over whether it is a requirement or recommendation.  There are also several options on the table, with the U.S., EU, and Japan all tabling proposed language.

i.    Three Strikes/Graduated Response

This has been one of the hot button issues and countries have tried to counter concerns by arguing that there is no mandatory three strikes provisions within ACTA.  That is true.  In fact, the footnote proposed by the U.S. which envisioned three strikes as a model policy for ISPs has been removed from the consolidation (the footnote now only notes that one country – likely Japan – would like language confirming that its national law complies with the ACTA provision).  This indicates that the U.S. has dropped the reference to three strikes from its proposed language on ISP liability.

However, that does not mean that three strikes has disappeared from the draft entirely.  The U.S. proposal for ISP liability is one of three options currently being considered.  The European option preserves, but does not require, three strikes:

Paragraph 3(a) shall not affect the possibility for a judicial or administrative authority, in accordance with the Parties legal system, requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility of the parties establishing procedures governing the removal or disabling of access to information

The EU will argue this is consistent with the law in a few of its member states.  If the approach is adopted, it will clearly keep three strikes on the table and could be used in other ACTA member countries to encourage its adoption.  Note that Japan has offered a third alternative which involves the development of codes of conduct between rights holders and ISPs.

ii.    Notice and Takedown

ACTA still contains a notice-and-takedown requirement for ISPs to qualify for a safe harbour.  That is inconsistent with Canadian law, which has no such requirement and has twice proposed a notice-and-notice system.  Notice-and-notice has been used effectively for many years in Canada.

Anti-Circumvention Legislation

The anti-circumvention provisions continue to mark a renegotiation of the WIPO Internet treaties by mandating the implementation of the DMCA.  The provision calls for adequate and effective legal protection for technological protection measures (much like WIPO), but then requires provisions against devices that can be used to circumvent and some countries want the provision to extend to access controls (neither in WIPO).  There are still considerable square brackets on this provision, but the direction is clear – limit the flexibility that exists under international law for the protection of TPMs.

Civil Enforcement Chapter

The countries still disagree on scope – some want it extended to all IP rights, others limited to copyright and trademark.  The proposed language still includes broad injunction powers and requires the establishment of statutory damages, something not found in many ACTA countries. Moreover, Canada and New Zealand appear to dropped their request for the following limiting language:

For greater certainty, a Party may limit or exclude damages in certain special cases.

The statutory damages provision still includes disagreement over whether it is required (U.S. and Japan) or optional (EU, Canada, New Zealand). 

There is much more here – analysis to follow.

Border Measures Chapter

There is still disagreement on scope as the EU wants the option to extend to all IP, others want it limited to copyright and trademark. There was major progress in New Zealand on the de minimis provision, which is designed to address fears of iPod searching border guards.  Prior drafts contained several proposals.  The current consolidation reflects near consensus:

Parties may exclude from the application of this Section small quantities of goods of a non-commercial nature contained in travelers’ personal luggage [or sent in small consignments.]

There are still broad disclosure and information sharing requirements within the chapter.

Criminal Enforcement Chapter

The chapter still targets both commercial infringement and cases of non-commercial "wilfull" infringement.  This section illustrates the downside of removing attribution from the text.  The leaked consolidation showed many variable proposals.  The new text simply places everything in square brackets and does not flesh out the different proposed language.

The EU proposal to include "inciting, aiding, and abetting" also remains in the text, in square brackets.  Proposals to target labels and camcording in theatres remain in the text.

Other Chapters

ACTA contains many other chapters on institutional issues, capacity building, international cooperation, and more.  A quick scan suggests those chapters remain unchanged.  They were not on the New Zealand agenda.

The Associated Press has a story on ACTA and the growing concern from the technology community with the agreement.

The World Trademark Review has an interesting post on the opportunity for WIPO to re-engage in ACTA, following a request for answers from Members of the European Parliament.

The New Zealand round of ACTA negotiations concluded earlier today with participants promising to release the draft text next week. This obviously represents a major new development that reflects the mounting global pressure for greater transparency that built in the weeks leading up to the negotiations. The joint statement also confirms that the next round of negotiations will take place in Switzerland in June and restates positions that have been repeated in consultations such as no mandatory three strikes (see here for why concerns remain), no iPod searches at the border (still a concern given the de minimis language), and compliance with fundamental rights (privacy concerns remain).

Since the text has already been leaked, the importance of the official release arises less from revealing what is in ACTA and more from showing how much progress has been made (the joint statement indicates "good progress").  Moreover, the released text (coming April 21st) will not attribute positions to specific countries, something that is available in the leaked text.  With the official draft text released, government officials will now be able to answer specific questions about the text.  Many previously declined to do so on the grounds that they would not address questions arising from unofficial or leaked documents.

Consumer Electronics Association head Gary Shapiro writes on ACTA, warning that it is the most dangerous global trade agreement you've never heard of.

As I posted over the weekend, I had the pleasure of participating in the PublicACTA conference in Wellington, New Zealand.  The Wellington Declaration is a must-read, as is the extensive media coverage that ACTA has received over the past 48 hours in New Zealand (NZ PC World, National Business Review, IT News, ComputerWorld NZ, NZ Herald).  The last few days have provided a model for how those concerned with ACTA should become engaged with future rounds of talks.

For those looking for up-to-date information on ACTA, my column this week (Toronto Star version, homepage version) previews the New Zealand talks, noting the pressure points on transparency and substance of the treaty.

Even better, all the videos from the PublicACTA conference can accessed online.  I have embedded my talk below. It provides a primer on the background of ACTA, reasons for concern, and a brief comment on what can be done.  An MP3 version of the same talk can be downloaded here.

The U.S. Trade Representative issued a release just prior to the launch of the New Zealand round of ACTA negotiations that has left no doubt that the U.S. is the biggest barrier to official release of the ACTA text.  The full text of the release is couched in terms of improving transparency, but is really a thinly-veiled shot at the European Union's public demands for release of the text.  The U.S. statement:

"In this upcoming round of ACTA negotiations, the U.S. delegation will be working with other delegations to resolve some fundamental issues, such as the scope of the intellectual property rights that are the focus of this agreement.  Progress is necessary so that we can prepare to release a text that will provide meaningful information to the public and be a basis for productive dialogue.  We hope that enough progress is made in New Zealand in clearing brackets from the text so that participants can be in a position to reach a consensus on sharing a meaningful text with the public."

Note what the U.S. is actually saying – resolving scope of the treaty (the E.U. is seeking a broader scope that includes patents) and removing square brackets (the sources of disagreement) is needed to reach consensus on sharing text with the public.  Yet there is no reason to link ACTA transparency with the substance of the treaty.  The text of the treaty can be released without regard for the level of agreement on substantive issues.  Yet unlike most other ACTA countries that have called for transparency without condition, the U.S. has set conditions that effectively seeks to trade its willingness to release the text for gains on the substance of the text.  The only thing needed to reach consensus on sharing the text with the public is for the U.S. to give the go-ahead.  This statement indicates they will only do so for a price.