The leaks keep coming for the Anti-Counterfeiting Trade Agreement (ACTA). A new leak from Europe has revealed the inner workings of the negotiating process through a 40+ page document showing each country’s positions on key provisions of the treaty.
While most of the negotiating is quite technical, what stands out most sharply is the international resistance to the US-drafted proposals on DRM “anticircumvention” rules. Let’s take a look at some of the key differences among parties.
Hey, isn’t this an IP treaty?
As part of a fairly technical discussion on ISP liability for copyright infringement, the US laid out its main reason for supporting “safe harbors” for Internet companies: “in order to facilitate the continued development of an industry engaging in providing information services online.”
New Zealand expressed displeasure, noting that the point of ACTA was not to boost the “information services online” industry. The statement “appears to go beyond the general aim of ACTA to provide a framework for the enforcement of intellectual property rights,” said the New Zealand delegation, even though it supports the safe harbor principle.
New Zealand also objected to a US proposal that would provide a safe harbor when infringement occurs by “referring or linking users to an online location.” New Zealand’s question is a simple one: how can a hyperlink violate copyright?
“We understand this provision covers information location tools such as search engines,” said the delegation. “It is not clear how the provision or use of information location tools breaches copyright, or why third party liability should arise for the provision of such tools. We would welcome further explanation on the need to provide such a safe harbour.”
This, of course, has been the main argument of most BitTorrent search engines (“We don’t host any material, just links—like Google!”), but that hasn’t prevented numerous lawsuits against such sites.
Changing the laws
The US is pursuing the ACTA negotiations as an “executive agreement” rather than a full-on treaty; this avoids the need for Congressional ratification but also means that ACTA cannot alter US law. This means a strong US push to export the Digital Millennium Copyright Act (DMCA) to the rest of the world—and of course many countries will need to alter their own laws to make this happen.
This is made explicit by Japan, which mentions several times that the proposed text is at odds with Japanese law. Japan is therefore “examining” how to adjust ACTA “to Japanese legislation or vice versa.”
The European Union also notes at various points that the US proposals are “not consistent with the EU legislation,” though Europe doesn’t show much interest in rewriting its own laws—”Important. No flexibility” is scattered throughout the negotiators’ notes.
About those WIPO treaties…
How did the US end up with the DMCA’s “anticircumvention of DRM” principle, anyway? It wasn’t an idea pushed only during US lawmaking; it actually came from the 1996 World Intellectual Property Organization (WIPO) Copyright Treaty.
The DMCA implemented the WIPO Copyright Treaty, though it went farther than WIPO ever did in some respects—and rightsholders have been attempting to convince the world ever since that the WIPO Copyright Treaty says more than it does (the WIPO Performances and Phonograms Treaty, also passed in 1996, is almost identical on the question of DRM).
The WIPO Copyright Treaty says of DRM that “Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.”
Note that “adequate” and “effective” are purposely undefined in the treaty to allow flexibility in implementation; note also that legal remedies must only be provided in cases where DRM “restricts acts… which are not… permitted by law.” If DRM restricts activities that would otherwise be legal—say, format-shifting a DVD to your iPod in the US—countries are not required to provide any anticircumvention protection.
And yet, when the US proposed broad, DMCA-style anticircumvention language in ACTA, it opened by saying that this was done in order to implement the two WIPO treaties. No one else is buying this, though, and the EU, Japan, and Canada all asked for the WIPO section to be struck out.
Japan went so far as to raise a lengthy question about this, pointing out that “the WIPO treaties do not require the Parties to implement the restriction of circumvention on access control. Thus, making reference to the WIPO treaties is inappropriate.”
In addition, Japanese law has many fewer such restrictions, and Japan would “like to know from the US or other countries which adopt a restriction on circumvention of access control” just how much harm is caused by bypassing DRM and how effective the anticircumvention provisions have actually been.
Perhaps Japan has the same questions about DRM as this guy.
ISP monitoring: definitely out
Though there are disagreements about where to put the language, all the countries involve recognize that requiring ISPs to monitor their networks for copyright infringement, and conditioning safe harbors on such monitoring, is a Bad Idea. Which is a Good Idea.
Given the rumors that the US-drafted Internet section of ACTA might well mandate such filtering, it looks the Internet has dodged a collective bullet.
So much secrecy
The leak is a fascinating peek inside a process that must be, most of the time, insanely boring. If you think ACTA is all about plotting world domination, give the negotiating notes a read; much of the time is spent hashing out individual words and phrases, trying to meld various legal systems, and talking about the “three-step test.”
The real mystery here is why some governments are pushing so hard to keep the various proposals and counterproposals secret; some ideas are hugely controversial, but nothing appears to be “secret” in the way that missile deployment numbers, for instance, might be secret.
But thanks largely to Europeans, the ACTA leaks keep on dripping. An earlier leak last week even told us which countries were dragging their heels on transparency: Belgium, Germany, Denmark, Portugal, South Korea, and Singapore. As for the US, it refuses to take a position, and is certainly not pushing for more disclosure.
We checked in with the US Trade Representative official handling the negotiations to ask why the US, despite its repeated public commitments to transparency, would not even take a position. There was no answer.
Interesting Things 
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