U.S. President Barack Obama and Mexican President Felipe Calderón issued a joint statement this week that touched on ACTA, reaffirming "their commitment to the negotiation of the Anti-Counterfeiting Trade Agreement and charged their administrations to conclude these negotiations soon."
The Australian Digital Alliance has submitted a detailed analysis of ACTA's impact on intermediaries and individuals with the Australian government. The analysis includes 16 recommended changes.
The WTO has declined a request from the European Parliament to comment on ACTA, since it currently has no role in the negotations.
Rogers Communications appeared before the Standing Committee on Canadian Heritage and was asked by NDP MP Charlie Angus about their position on ACTA and ISP liability. Ken Englehart, Senior VP Regulatory, left little doubt about the company's concerns with ACTA and the possibility of a three-strikes and you're out model coming to Canada:
We are concerned, as many ISPs are, about the ACTA negotiations. It's supposed to be about counterfeiting, but it seems to have gone way past counterfeiting to talking about issues of ISPs and the downloading activities of our customers. We don't think ISPs should be put in the position of being traffic cops to decide what is legal and what is not. We really hate any idea that we would have to terminate our customers' service on a three-strikes policy. We do not want to do that at all. I have a great deal of sympathy for the copyright holders who feel that their content is being stolen. It's a big problem. But I don't want to see this done by putting ISPs in the position of having to disconnect their customers or aid in the conviction of their customers.
When asked to expand on how ISPs and copyright holders strike the balance, Englehart focused on the effectiveness of the current notice-and-notice system, arguing that "those types of mechanisms should be exhausted before any kind of more Draconian measures are imposed."
Luc Devigne, the European Commission's lead ACTA negotiator, recently appeared before the International Trade Committee which brought together Members of the European Parliament and ACTA negotiators. Sources say Devigne revealed several key things:
The German Federal Council, the Bundesrat, has passed a resolution criticizing the decision to create a new ACTA forum, rather than negotiating within international institutions such as WIPO or the WTO.
With the Canada – European Union summit underway this week, the European Parliament has just passed a resolution that calls on Canada to support even greater ACTA transparency and to shift the negotiations to an international organization such as WIPO. The full paragraph within the resolution states that the European Parliament:
Hopes that Canada will fully support the EU's request to open up the ACTA negotiations to public scrutiny, as it requested in its resolution of 10 March 2010, and to have those negotiations conducted under the auspices of an international organisation, the most suitable being WIPO;
In the aftermath of its success in promoting release of the ACTA draft text, it is interesting to see the European Parliament becoming increasingly vocal about the ACTA negotiations. Canada has remained generally silent on these issues and the EP resolution may help coax out a response.
The Mark News runs my opinion piece on why Canadians should care about ACTA, focusing on its specific implications for domestic policy.
Kim Weatherall has posted a detailed section-by-section analysis of ACTA and its potential impact on Australian law.
This post appears as a guest column on GigaOm today:
After years of secrecy, the eighth round of talks aimed at drafting an international treaty called the Anti-Counterfeiting Trade Agreement (ACTA) recently concluded in New Zealand – and in the face of public pressure, a version of the text was subsequently made available to the public. The ACTA is neither a trade agreement nor one focused primarily on counterfeiting, but a copyright deal featuring provisions on Internet service provider and Internet company liability, DMCA-style notice and takedown requirements, legal protection for digital locks, and requirements for statutory damages that could result in millions in liability for non-commercial infringement – even heightened searches at border crossings.
Ever since the ACTA partners – among them the U.S., E.U., Canada, Japan, South Korea, Australia, New Zealand, Mexico, Morocco and Singapore – announced negotiations plans in October 2007, ACTA has been dogged by controversy over a near-total lack of transparency. Early talks were held in secret locations with each participating country offering virtually identical, cryptic press releases that did little more than fuel public concern. Now that the ACTA text is public, some might wonder whether there’s still cause for concern. Indeed, given widespread support for measures that target genuine commercial counterfeiting, some might believe it’s time to actively support ACTA.
It’s not – at least not this version.
Still secret
From a transparency perspective, the text release still feels like the exception to the general secrecy rule. The ACTA governments have revealed that the next round of negotiations will take place in Switzerland in June, but currently refuse to provide a specific location or dates. Moreover, the official release scrubbed all references to country positions (such information was available in a previously leaked version), so as to U.S. government claims that ACTA is fully consistent with current U.S. law, at this point we have to take their word for it.
Different region, different rules
Of even greater concern are the provisions themselves. Because of the large number of substantive rules and the differences in domestic law among the ACTA countries, fears about specific provisions vary from region to region. In the U.S., ACTA might means the rules for obtaining injunctions would have to be changed, removing some of the balancing safeguards that currently exist. In Europe, ACTA’s privacy implications have generated concern from data protection authorities and the prospect of mandatory statutory damages, which has led to the multimillion-dollar file-sharing lawsuits in the U.S., would represent a major change in the law there.
Virtually every member country would have to amend its own rules and regulations: Japan would have to change its laws to require ISP policies on allegations of subscriber infringement, Australia would need anti-camcording rules, New Zealand would have to change its anti-circumvention rules and Canada would be forced to adopt a notice-and-takedown system similar to the one found in the U.S. Of course, the many countries excluded from the ACTA talks – including China, Brazil and India – would likely face pressure to conform to ACTA standards and if they complied, even more dramatic changes.
Behind closed doors
Beyond the fundamental reshaping of intellectual property law on a global scale, ACTA is also reframing how those laws are made. The alphabet soup of international organizations typically responsible for such issues – WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD – are all far more open, transparent and inclusive than ACTA.
Moreover, final approval of ACTA raises significant constitutional issues. In the U.S., ACTA is being treated as executive agreement in a blatant attempt to sidestep Congressional approval. Across the pond, the European Parliament has demanded far greater involvement in the ACTA process, but has been largely rebuffed by the European Commission, which heads its delegation.
Public pressure helped make ACTA marginally better, but the release of text only confirms many of the fears regarding the substance of the treaty. Add in the ongoing transparency and process concerns and it is clear that public engagement on ACTA is needed now more than ever.