Let's Act on ACTA Before it's Too Late

by Glyn Moody

It was over a year ago that I wrote about the “Anti-Counterfeiting Trade Agreement” (ACTA), a new global standard for the enforcement of intellectual monopolies currently being discussed by representatives of the United States, the European Commission, Japan, Switzerland, Canada, Australia, Korea, Mexico and New Zealand. Since then, the secret negotiations have been continuing, and the threats it poses to the Internet as we know it grow ever larger.

That was starkly demonstrated recently when Michael Geist managed to get hold of details about the hitherto-mysterious section of ACTA dealing directly with the Internet. Here are its main provisions:

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.

2. A requirement to establish third-party liability for copyright infringement.

3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). For example, in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content. Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30. They include policies to terminate subscribers in appropriate circumstances. Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.

4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements. For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules. These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception. Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices. The current draft does not include any obligation to ensure interoperability of DRM.

5. Rights Management provisions, also modeled on U.S. free trade treaty language.

The second of these means that ISPs would become liable for copyright infringement committed by their users. The idea here is to force them to become copyright cops if they want to survive, and to shift the onus onto them for the policing of all digital content – a massive win for the media industries, which have hitherto shown themselves totally inept when it comes to trying to do the same.

Section three basically mandates the introduction of the infamous “three strikes and you're out” disconnection policy that has been adopted by France, and is being considered in the UK. Note that it's enough for the content companies to *accuse* you of downloading copyright material three times for your connection to be cut off. Moreover, it doesn't matter who in a family may or may not have done the downloading: the connection is cut off for *everyone*.

Section four brings in DMCA-like anti-circumvention provisions that make it illegal for anyone under almost all circumstances to try to get around DRM on content.

Some have downplayed the importance of these revelations, pointing out that many of the proposals are already law in some jurisdictions such as the UK and US. But that misses the point: ACTA is about *exporting* the worst aspects of existing copyright legislation to those major economies around the world where they are not yet implemented. It's the classic ratchet effect that always moves legislation in a direction favourable to the content industries, and never sees corresponding moves in favour of consumers.

The other troubling aspect of ACTA is that the negotiations are *still* being held behind closed doors, despite growing recognition that transparency is indispensable if the end-result is to have any legitimacy with those of use outside that process. The nominal, and totally feeble, justification for this secrecy is the old catch-all “security”. But as the leaked documents have made clear, ACTA has nothing to do with *national* security, but is all about giving the content industry security that they can continue to impose their broken analogue business models on a changing, digital world.

Indeed, it is clear from a recent European Commission document, obtained this time by the indispensable Wikileaks, that the US media companies, though their proxy, the US government, are the main driving-force behind the section on the Internet (and probably in the rest of the treaty, too). It's really rather pathetic:

This is to inform [Member States of the EU] about the state-of-play of the internet enforcement chapter that should be discussed at the next ACTA negotiating round in Seoul, Korea.

On 22-24 September, DG Trade participated in the EU-US IPR Working Group, which took place in Washington. In a side meeting with the USTR (US lead negotiators on ACTA), at their request, the US colleagues informed us about the progress in the preparation of a draft text of the future Internet Chapter of ACTA. US reported that they have been working on a draft text since the end of the 5th round (end of July) and that this was basically finalised. However, they are still involved in internal consultations with other government agencies and a number of private stakeholders (bound to strict confidentiality clauses), therefore they were not willing to share with COM (or even to show us) the text at this stage.

USTR indicated that these internal discussions were sensitive due to different points of view regarding the internet chapter both within the Administration, with Congress and among stakeholders (content providers on one side, supporters of internet "freedom" on the other).

That is, the US isn't even sharing with its ACTA partners the “basically finalised” draft of the Internet chapter. Why? Because of “internal consultations” with “a number of private stakeholders”, who are essentially calling the shots – or at least, some of them: the scare quotes around the word “freedom” makes plain the attitude of the ACTA crowd to people who dare to stand up for Internet end users' rights in opposition to the commercial interests of the copyright crowd. The only ones that really count are representatives from the media industries, who are among the very few being granted access to ACTA documents, and being allowed to influence their drafting.

The real reason these discussions are being held in secret is not “security” but because the outcry over them would be much greater were the proposals out in the open. It's a blatant attempt to slip hugely-damaging clauses into the treaty without the little people like you and me noticing until it's too late.

Fortunately, the leaks linked to above have given us a last chance to kick up a fuss before these negotiations are concluded. If we don't, then the powers-that-be will certainly take it as a sign that nobody really cares anyway, and that they can just satisfy the demands of their media chums. Assuming you don't want the Internet to become a sterile wasteland of locked-down content, with threats of Internet disconnection hanging over entire families for any alleged infringement, you might want to spread the word in any way you can (emails, blogs, tweets, dents, word of mouth) so that more people know about ACTA, and more people start to react.

Follow me @glynmoody on Twitter or identi.ca.