[IRP] The ACTA Internet Chapter: Putting the Pieces Together

Katitza Rodriguez katitza
Tue Nov 3 19:06:11 EET 2009


The Anti-Counterfeiting Trade Agreement negotations continue in a few  
hours as Seoul, Korea plays host to the latest round of talks.  The  
governments have posted the meeting agenda, which unsurprisingly  
focuses on the issue of Internet enforcement.  The United States has  
drafted the chapter under enormous secrecy, with selected groups  
granted access under strict non-disclosure agreements and other  
countries (including Canada) given physical, watermarked copies  
designed to guard against leaks.

Despite the efforts to combat leaks, information on the Internet  
chapter has begun to emerge (just as they did with the other elements  
of the treaty).  Sources say that the draft text, modeled on the U.S.- 
South Korea free trade agreement, focuses on following five issues:

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  

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.

If accurate (and these provisions are consistent with the U.S.  
approach for the past few years in bilateral trade negotations) the  
combined effect of these provisions would to be to dramatically  
reshape Canadian copyright law and to eliminate sovereign choice on  
domestic copyright policy.  Having just concluded a national copyright  
consultation, these issues were at the heart of thousands of  
submissions.  If Canada agrees to these ACTA terms, flexibility in  
WIPO implementation (as envisioned by the treaty) would be lost and  
Canada would be forced to implement a host of new reforms (this is  
precisely what U.S. lobbyists have said they would like to see  
happen).  In other words, the very notion of a made-in-Canada approach  
to copyright would be gone.

The Internet chapter raises two additional issues.  On the  
international front, it provides firm confirmation that the treaty is  
not a counterfeiting trade, but a copyright treaty.  These provisions  
involve copyright policy as no reasonable definition of counterfeiting  
would include these kinds of provisions.  On the domestic front, it  
raises serious questions about the Canadian negotiation mandate.   
Negotations from Foreign Affairs are typically constrained by either  
domestic law, a bill before the House of Commons, or the negotiation  
mandate letter.  Since these provisions dramatically exceed current  
Canadian law and are not found in any bill presently before the House,  
Canadians should be asking whether the negotiation mandate letter has  
envisioned such dramatic changes to domestic copyright law.  When  
combined with the other chapters that include statutory damages,  
search and seizure powers for border guards, anti-camcording rules,  
and mandatory disclosure of personal information requirements, it is  
clear that there is no bigger IP issue today than the Anti- 
Counterfeiting Trade Agreement being negotiated behind closed doors  
this week in Korea.

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