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ACTA’s Latest Text – A Quick Read Through

ACTA’s Latest Text – A Quick Read Through

We recently reported that an updated version of ACTA (Anti-Counterfeiting Trade Agreement) has leaked online. We are currently pouring over the contents of the forbidden text (since heaven forbid legal procedures such as FOIA requests actually get close to penetrating this fortress of security) and have already found some interesting items within the text.

We should note that this is an updated version of the text and newer than the public version of the text. This is updated to the 1st of July of 2010, so it’s very new. We should also note that we are, by no means, legal experts in international law, but we are simply reading through this with great interest.

Will my iPod Get Searched At the Border

One of the concerns about ACTA was that it would oblige border security to do digital frisking – that is, searching through your iPods, cell phones and laptops for potentially pirated material. Very scary stuff indeed considering what kind of implications that would bring under the light of civil rights. What does the latest version of the text say?

Section 2: Border Measures [...]

1. This section sets out the conditions for action by the competent authorities when goods are suspected of infringing intellectual property rights, within the meaning of this agreement, when they are imported, exported, in-transit or in other situations where the goods are under customs supervision.

2. For the purposes of this section, “goods infringing an intellectual property right” means goods infringing any of the intellectual property rights covered by TRIPS.

So the question is, what is covered in TRIPS that could be related to this concern? According to TRIPS:

Article 14
Protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations

1. In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorization: the broadcasting by wireless means and the communication to the public of their live performance.

2. Producers of phonograms shall enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.

There is, however, a De Minimis Provision which says:

Parties may exclude from the application of this Section small quantities of goods of a non-commercial nature contained in travelers’ personal luggage.

So, the question becomes, what if there’s a business laptop in question? Additionally, what if countries choose not to enact this provision in the first place? That would still be a very big concern on this front.

Will people be Criminally Liable?

That would be found in article 2.14:

1. Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights on a commercial scale.

So, in this particular article, criminal liability is only in commercial scale. This includes what is found a little later on in the agreement:

[3. Each party shall provide for criminal procedures and penalties to be applied against any person who, without authorization of the holder of copyright [or related rights] in [Mor: an audiovisual work, including] a cinematographic work [Can: or the theatre manager] [knowingly] [US: uses an audiovisual recording device to transmit or make] a copy of the cinematographic or other audiovisual work, or any part thereof, from a performance of the cinematographic or other audiovisual work in a cinematographic work exhibition open to the public.]

The square brackets mean that those particular lines are in dispute. In the case where it starts with, say, “Can” for Canada, it’s a provision brought forth by that country.

Will criminal laws apply to online usage?

Well, lets take a look at section 4 entitled “[Special Measures Related to Technological Enforcement of Intellectual Proprty in the Digital Environment]”

Each Party shall ensure that enforcement procedures, to the extent set forth in the civil and criminal enforcement sections of this Agreement, are available under its law so as to permit effective action against an acr of [US/Aus/NZ/Can/Sing/MX: trademark, copyright or related rights][J/EU/CH: intellectual property rights] infringement which takes place [US/Sing/MX: by means of the internet][EU/CH: in the digital environment] , including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.

Unfortunately, I can’t confirm either way on this simply because the text is so complicated (anyone else welcome to confirm or deny this of course)

Notice and Takedown

In the US, it might not mean much now since it has been a part of law for so long, but in Canada, this is such a huge issue because there is an informal notice-and-notice regime. So what does ACTA demand? There’s a number of provisions that suggest that ISPs would have safe harbor provisions. Unfortunately, there are strings tied to this:

(b) that the application of the provisions of subparagraph (a)(ii) is conditioned on an online service provider [J: take appropriate measures] expeditiously [Can: or within a defined period of time] [J: such as those to remove or disable] removing or disabling access to material upon [J: obtaining actual knowledge of the infringement or having reasonable grounds to know that the infringement is occurring] receipt of a legally sufficient notice of alleged infringement concerning material that has previously been removed from the originating site.

In short, it’s a notice and takedown provision (ala global DMCA).

Anti-circumvention

This section pretty much speaks for itself:

[EU/J/Mex/Mor.Aus: 4. Each Party shall provide adequate legal protection and effective legal remedies [US: at least] against the circumvention of effective technological measures that [US: are used by, or at the direction of,] authors, and performers and producers of phonograms use in connection with the excercise of their rights and that restrict acts in respect of their works performances, and phonograms, which are not authorized by the authors, the performers of the producers of phonograms concerned or permitted by law.

Note: some countries want to strike a few words out here and there in this.

There are other sections, but it’s pretty par for the course. You can’t manufacture, import or distribute anything that circumvents a digital lock.

What about exceptions?

Article 2.18.X

Each Party may adopt and maintain exceptions or limitations to measures [Can: provisions] implementing paragraph (4), so long as they do not significantly impair the adequacy of legal protection of those [Can: technological] measures or the effectiveness of legal remedies for violations of those measures.

The question here is, is this a jab at any exceptions? This is a new loophole after all.

Propaganda

One has to wonder, why use the term “Public Awareness” when “Propaganda” is more appropriate?

Article 4.4: Public Awareness

Each Party shall [take [J:necessary] [Sing: such][AUS: apprpriate]] [US: promote the adoption of appropriate] measures [Sing: as it deems appropriate] to enhance] [NZ: will promote] [US/MX: including educational projects, designed to raise] public awareness of the importance of [J: the protection of ][US: protecting] intellectual property rights and the detrimental effects of intellectual property right infringement, including educational [J: and dissemination] projects. [US/CAN/MX: Such measures may include joint initiatives with the private sector.]

In other words, they want to make it law that people must be told one download means one lost sale to name one example.

Additional Commentary

This is, by no means, a thorough review of ACTA’s current leaked text. There’s so many provisions being negotiated, that it makes an already complicated text even more complicated. One thing to note, we didn’t uncover any three strikes law in this version of the text. There’s no graduated response or references to such a provision that we could find in this text. That could mean a number of things: 1. We missed it and it’s buried in the text so well, that we can’t immediately find it or 2: After outside pressure, that provision was removed.

Still, if the anti-circumvention provisions is anything to go by, ACTA sort of looks like an attempt to Americanize international law because so much of this is modeled off of the DMCA. In any event, it was a very interesting read to say the least.

Further reading: Source for the most recent ACTA text

Update: Special thanks to a Slashdot member for pointing out a transcribed non-PDF Wiki-format version of the text.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at [email protected].

Drew Wilson
Drew Wilson is perhaps one of the more well-known file-sharing and technology news writers around. A journalist in the field since 2005, his work has had semi-regular appearances on social news websites and even occasional appearances on major news outlets as well. Drew founded freezenet.ca and still contributes to ZeroPaid. Twitter | Google Plus
Aaron Walkhouse
Aaron Walkhouse

Drew, you better not be pouring coffee all over this thing before I'm done reading it!

Punisher
Punisher

ok so will i be searched when i leave the country? they should like take a hash of my music and movies folder and then when i come back in they know i didn't get it while on vacation... content providers really need to give up trying to stop this (in my opinion) and do like Hulu has... if you make it cheap enough then i wont mind paying for it and I promise you will see enormous jump and volume that will probably actually increase your revenue... what you didn't hear about that websites A/B conversion test of price point where they found that the conversion rate of sales for lower price point meant that they would actually make 20% more revenue with the lower price... i mean you can copy it infinite times sell it to us at a reasonable price and stop grabbing for pennies with DRM and paywalls because your just hurting yourself... if you give your users a good reliable product at a reasonable price then your business will be profitable and if thats nto the case then something is wrong with your business model... God I wish rupert's newspapers would just fail already so they could be replaced with something better... i mean for instance the WSJ $1.99 per week is $103.48 a year for a ONLINE ONLY NEWSPAPER... i was thinking more along the lines of like $10 a year... then id give you my money :)

You
You

it will never stop us

Alsee
Alsee

Note that "commercial scale" infringement is a code phrase! It basically means "on the internet". Bittorrent, P2P systems, even a simple webpage open to the public, they all constitute "comercial scale". This means that article 2.14 mandates CRIMINAL law penalties for almost any infringement that touches the internet. The US used a similar trick to sweep most internet infringement into the criminal laws intended to target commercial infringement. The N.E.T. act redefined the phrase "financial gain" to include the receipt or expectation of receipt of anything of value, including copyrighted works. Uploading a song with even the expectation of being able to download other songs qualifies as infringement for financial gain. That means anyone using any P2P system, or even schoolchildren swapping mix tapes, fall under the category of infringement-for-financial-gain. Under US law tens of millions of people are technically felony criminals subject to up to a year, or usually up to three years in federal prison. The law is almost never enforced, but it does make most internet infringement into a felony crime.

Sionyn
Sionyn

meh i wonder what they will make of my rockbox

Paschar
Paschar

When more people realize the government is not here to HELP you but CONTROL you, we will have a paradigm shift that might just help all of us get our freedom back. This is one of many things to control all information and help the mega industries make more money, so business as usual. It's not just the U.S., the world is ready for a change, something needs to spark it. The older generation will be useless to this cause, they're too brainwashed to be of any help.

Capt'n Spalding
Capt'n Spalding

Once again it looks like the American government is pushing its policies on an international level. This is a very slippery slope, when it comes to infringing on peoples rights at the borders and propaganda (aka Public Awareness) is being written into bills. They want you to be docile and take all the bullshit they feed you, I think its time everyone, not just downloaders/pirates, to wake up and realize your government is working for big business, succumbing to the all mighty dollar and not serving the people as intended. In the words of Rage Against The Machine "Know Your Enemy"

Howard Beale
Howard Beale

I don't have to tell you things are bad. Everybody knows things are bad. It's a depression. Everybody's out of work or scared of losing their job. The dollar buys a nickel's worth, banks are going bust, shopkeepers keep a gun under the counter. Punks are running wild in the street and there's nobody anywhere who seems to know what to do, and there's no end to it. We know the air is unfit to breathe and our food is unfit to eat, and we sit watching our TV's while some local newscaster tells us that today we had fifteen homicides and sixty-three violent crimes, as if that's the way it's supposed to be. We know things are bad - worse than bad. They're crazy. It's like everything everywhere is going crazy, so we don't go out anymore. We sit in the house, and slowly the world we are living in is getting smaller, and all we say is: 'Please, at least leave us alone in our living rooms. Let me have my toaster and my TV and my steel-belted radials and I won't say anything. Just leave us alone.' Well, I'm not gonna leave you alone. I want you to get MAD! I don't want you to protest. I don't want you to riot - I don't want you to write to your congressman because I wouldn't know what to tell you to write. I don't know what to do about the depression and the inflation and the Russians and the crime in the street. All I know is that first you've got to get mad. (shouting) You've got to say, 'I'm a human being, god-dammit! My life has value!' So I want you to get up now. I want all of you to get up out of your chairs. I want you to get up right now and go to the window. Open it, and stick your head out, and yell, 'I'm as mad as hell, and I'm not going to take this anymore!' I want you to get up right now, sit up, go to your windows, open them and stick your head out and yell - 'I'm as mad as hell and I'm not going to take this anymore!' Things have got to change. But first, you've gotta get mad!...You've got to say, 'I'm as mad as hell, and I'm not going to take this anymore!' Then we'll figure out what to do about the depression and the inflation and the oil crisis. But first get up out of your chairs, open the window, stick your head out, and yell, and say it: I'm as mad as hell, and I'm not going to take this anymore!

Joe Biden
Joe Biden

Threat to national security, all of you.

Ang3r
Ang3r

Yes I know my enemies.....

TSA Agent
TSA Agent

Forget the guy with the shampoo bottle full of nitroglicerine, this guy has an MP3 player full of non-DRMed songs!



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