New official ACTA draft reveals watered down copyright provisions

Parties to the Anti-Counterfeiting Trade Agreement (ACTA) released a new draft Wednesday that shows the negotiating partners have moved away from intellectual copyright provisions describing what signatories shall do to what they “may” do. The new consolidated text, dated Oct. 2, is considered a watered down version from earlier drafts that included provisions modelled on the U.S. Digital Millennium Copyright Act (DMCA). The new version resembles something more like the Internet treaties of the World Intellectual Property Organization (WIPO), Michael Geist, law professor and Canada research chair of Internet and e-commerce law at the University of Ottawa, wrote in a blog posting Wednesday. Parties to ACTA have been in closed-door negotiations since 2007. Participants include Australia, Canada, the European Commission and the EU member states, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States. The parties held a final round of negotiations in Tokyo that wrapped up on Oct. 2. Australian Trade Minister Craig Emerson told AAP that there was breakthrough during the Tokyo negotiations and that only a few issues need to be resolved. Geist wrote that the new ACTA draft offers more flexibility than the Conservative government’s copyright reform Bill C-32. “In fact, the Canadian copyright bill now exceeds the requirements under ACTA and could be amended in a manner that will allow for greater balance on digital locks and still be ACTA compliant,” Geist wrote. ACTA’s legal protection for digital locks, or digital rights management, and provisions against the importation or distribution of circumvention devices, now permits countries to implement exceptions. The text says “each Party may adopt or maintain appropriate limitations or exceptions to measures” and that the obligations “are without prejudice to the rights, limitations, exceptions, or defenses to copyright or related rights infringement under a Party’s law.” Geist wrote that the draft shows that the U.S. appears to have backed down on a DMCA-style approach to digital locks. The provisions on ISP liability have also been watered down and an anti-camcording provision has been changed from a requirement to a provision that countries “may” implement. It also includes a provision that says parties may implement mechanisms to force ISPs to give up subscriber information to rights holders that have “filed a legally sufficient claim of infringement.” Canadian International Trade Minister Peter Van Loan said in January that Canada “would need to be fully satisfied that it reflects the best interests of Canadians” before signing it. U.S. Trade Representative Ron Kirk issued a statement Wednesday saying the latest draft “reflects tremendous progress in the fight against counterfeiting and piracy.” Kirk said the ACTA parties showed leadership to reach “a solution on tough issues” and that parties “must now work quickly with our partners to finalize the results achieved in Tokyo. This work represents a significant victory for those who care about protecting and enforcing intellectual property rights.” But digital rights groups also celebrated the draft as a victory. Gigi B. Sohn, president and co-founder of Washington, D.C.-based public interest group Public Knowledge, said the changes to the text arose in part from the willingness of the USTR to open the ACTA discussions to public interest groups. “We appreciate the inclusiveness USTR has shown in the negotiations,” Sohn said. “The final text of the Anti-Counterfeiting Trade Agreement (ACTA) should be seen as a qualified victory for those who want to protect the digital rights of consumers around the world. Some of the most egregious provisions from earlier drafts have been removed on topics ranging from digital protection measures to the liability of intermediaries like Internet Service Providers and search engines. The agreement would give more flexibility to the signatories than did previous versions.” Sohn said the treaty governs intellectual property and from the beginning it should have been negotiated in an open forum like WIPO. The negotiations have been held behind closed doors and it was not until the emergence of significant public pressure and the leak of ACTA texts that parties to the negotiations made official drafts available. Van Loan said in April that Canada pushed for more transparency in the process. The European Parliament recently called on parties to make all negotiating documents public. The final draft will undergo final legal review before parties sign it, a process that is expected to take two years. The agreement comes into force six months after six countries ratify it. news@thewirereport.ca

New official ACTA draft reveals watered down copyright provisions

Broadcast | October 6, 2010

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