ACTA Leaks Again – Our Review of the August 2010 Copy

ACTA Leaks Again – Our Review of the August 2010 Copy

While the US is doing everything they can to block transparency of the text, the draft text has, once again, been leaked. We reviewed the text and are commenting on the provisions of this controversial text.

There’s a number of discussion points surrounding ACTA. They include whether or not police can seize your iPod at the border on suspicion of copyright infringement, if police enforcement is being diverted to serving corporate interests and if this would usher in a three strikes law. We reviewed the leaked document (PDF) and tried to answer some of these burning questions lingering out there. If you don’t want to read through out detailed analysis, you can simply skip to the bottom of the article for our summary.

Damages and Fees

The first interesting provision we found comes from article 2.2 where paragraph one says the following:

1. Each Party shall provide that in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer who knowingly or with reasonable grounds to know, engaged in infringing activity of {intellectual property rights} {copyright or related rights, or trademarks}, to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement.

2. {At least} in cases {EU/CH: of intellectual property rights} {of copyright or related rights infringement and trademark counterfeiting}, each Party shall provide that in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer to pay the right holder the profits of the infringer that are attributable to the infringement. A Party’s legal system may presume the profits of the infringer to be the amount of damages referred to in paragraph 1.

Judging by these two paragraphs, damages include all profits made off of alleged copyright infringement and statutory damages over top of it. So if you downloaded Photoshop and created a piece of artwork from it, then made 10 dollars from it and Adobe finds out about this, you would be liable for 10 dollars plus statutory damages.

5. Each Party shall provide that its judicial authorities, where appropriate, shall have the authority to order, at the conclusion of civil judicial proceedings concerning infringement of {intellectual property rights} {copyright or related rights, or
trademarks}, that the prevailing party be awarded payment by the losing party of court
costs or fees and appropriate attorney’s fees or any other expenses as provided for under that Party’s domestic law.

This is an interesting provision because it appears to go both ways in terms of court costs. If the RIAA sues an individual and loses, they are obliged to pay for court costs and attorney fees. Before, lawyers would have to argue for these costs (sometimes successfully, sometimes not) to be reimbursed by the losing party. Now it would be enshrined in law if this were to go through.

Border Measures

This was one of the more controversial issues in the agreement, so it’s interesting to see how it has evolved:

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.12 However, Parties may decide to exclude from the scope of this section, certain rights other than trademarks, copyrights and GIs when [not protected exclusively by copyright and trade mark systems and] [protected by [non-product- or sector-specific [registration] sui generis systems.]}

While surprising, a later section related to personal luggage reads as follows:

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

I think supporters who say that border officers won’t search your iPods under this agreement is not being honest judging by the language of this agreement. If this agreement wraps up this month like they say they will, then this provision is ultimately to the discretion of each individual country. As far as the US is concerned, for example, the RIAA may say that this exception is not necessary to satisfy compliance with ACTA, and thus, usher in an era where you could have your laptop, iPad, iPhone, iPod, cell phone, MP3 player, etc. searched at the border. If you think ACTA will do nothing to the US, this provision alone says otherwise.

For further clarification of the scope mentioned TRIPS agreement, one can find the following in the TRIPS scope:

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.

So music is, indeed, covered in the scope of the TRIPS agreement.

So, overall, the so-called “myth” that your iPods will be searched at the border is confirmed.

Criminal Enforcement

This is another hot button topic with regards to ACTA, so what does this section (2.14) say?

1.22 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 piracy on a
commercial scale.

So, it sounds like criminal enforcement applies to commercial related infringement which isn’t so bad because few people find physical commercial piracy acceptable. Is it limited to that? The answer is “no”.

3. [US/J/Kor/Can: Each Party shall [Mor/NZ/Mex: may] provide criminal procedures and penalties in appropriate cases for the unauthorized copying of cinematographic works from a performance in a motion picture exhibition facility generally open to the public.]

So, while this section is still in dispute amongst negotiators, this agreement says that if you download a movie, rather than this being a civil issue, it’s now a criminal issue. This is way more strict that what the US law provides where non-commercial copyright infringement in general is a civil matter, rather than a criminal factor. ACTA changes that. Europe, New Zealand, Singapore and China argues that this paragraph should be deleted.

ISP Subpoena’s

I found this a bit concerning:

4. Each Party may provide, in accordance with its laws and regulations, that its competent authorities have the authority to order an online service provider to disclose expeditiously the information of the relevant subscriber to the right holders, who have given legally sufficient claim with valid reasons to be infringing their {US: copyright or related rights}{J/EU: intellectual property rights}. [US/J/NZ: Each Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder, or to a person authorized by the right holder,31 information sufficient to identify an alleged infringer, where that right holder has filed a legally sufficient claim of infringement of {US: copyright or related rights}{J/EU: intellectual property rights} and where such information is being sought for the purpose of protecting or {enforcing the right holder’s {US: copyright or related rights}{J/EU: intellectual property rights}.]

The part I found concerning was towards the beginning where the language says specifically, “competent authorities”. So the question is, what does ACTA mean when it says “competent authorities”? Looking up the definition at the beginning, ACTA states:

competent authorities includes judicial, administrative, or law enforcement authorities as may be appropriate in the context and in the laws of each Party;

Why are we suppose to devote local enforcement resources towards enforcing the commercial interests of a few industries when the alleged harm due to copyright infringement is, at worse, in dispute and completely inaccurate at best? Shouldn’t police be allowed to pursue real crime like murder instead? I can’t think of one instance where police have unlimited resources. I personally think that it’s inappropriate to legally force law enforcement to tow a specific corporate line – especially after police expressed reluctance to enforce non-commercial internet copyright law.

Anti-circumvention

This is a section that suggests the exportation of the DMCA to the rest of the world:

5. Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures32 that are used by [Kor/US/CH/Aus/J/Sing/NZ: at least] authors, and [US: performers] and producers of phonograms in connection with the exercise of their [US/Kor/NZ: copyright [US/KOR: or related] rights [Can/EU/CH: under the WCT and WPPT] and that restrict acts in respect of their works, [performances] [Can: fixed in phonogram], and phonograms, which are not authorized by the authors, the [performers] or the producers of phonograms concerned or permitted by law.

[6. US/NZ/J: In order to provide such adequate legal protection and effective legal remedies, each Party shall provide protection at least [EU/J/CH: in appropriate cases of the following activities] [J/EU: to the extent provided by its law]33 against:

(a) the unauthorized circumvention of an effective technological measure [US/Sing/Aus: that controls access to a protected work, performance or phonogram and is] carried out knowingly [US: or with reasonable grounds to know]; and [NZ/EU/CH: propose to keep chapeau, delete(a)]

(b) the manufacture, importation, [or] distribution [US/NZ: of, or provision of] a device, product, [US/Sing/Ch [US: technology] or service] [J/EU: that is capable of circumventing an effective technological measure and is either:] (i) primarily designed or produced for the purpose of circumventing an effective technological measure; or

(ii) has only a limited commercially significant purpose other than circumventing an effective technological measure.]; and

(c) the offering to the public by marketing of a device, product, or [US/Sing/CH: [US: technology] or service] as a means of circumventing an effective technological measure.]

[J: propose to delete (c).]

[Note to legal reviewers: (a), (b) and (c) are meant to be three separate items for which
protection should be provided.]

[EU reserves its position on article 6.]

It’s nice to know that there is definite signs of dispute over this because one proposition is to have anti-circumvention laws with absolutely no exceptions (so even the US anti-circumvention laws would be significantly altered to be much more strict)

I also note that ACTA has no one proposing some of the exceptions previously enjoyed by several countries like circumvention for archival purposes and computer security purposes. ACTA appears to lack such exceptions, only to say that exceptions can be made so long as it doesn’t interfere with those provisions. If anyone says that ACTA restricts human rights, they are definitely correct.

It only gets worse:

7. [US/Sing/NZ/Aus: Each Party shall provide that a violation of a measure
implementing paragraph (5 and 6) is an independent unlawful activity that does not
require [J: any other] [US/Sing/NZ/Aus: an] infringement of copyright {US/Sing/Aus:
or related rights}.34]

[EU proposes deletion of paragraph 7.]

Again, it’s comforting to know that this is in dispute. What this would do is effectively reverse a court decision in the US which says that the mere act of circumvention is not an infringement:

“Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the (Digital Millennium Copyright Act’s) anti-circumvention provision,” Judge Garza wrote for the New Orleans-based court.

ACTA would reverse this, overriding what has been ruled in a legal court of law.

Chapter 3

To further burden police, ACTA contains the following:

1. Each Party shall encourage the development of specialized expertise within its competent authorities responsible for enforcement of intellectual property rights.

2. Each Party shall promote collection and analysis of statistical data and other relevant information concerning infringements of intellectual property rights as well as collection of information on best practices to prevent and combat those infringements.

3. Each Party shall, as appropriate, promote internal coordination among, and facilitate joint actions by, its competent authorities responsible for enforcement of intellectual property rights.

4. Each Party shall endeavor to promote, where appropriate, the establishment and maintenance of formal or informal mechanisms, such as advisory groups, whereby its competent authorities may hear the views of right holders and other relevant stakeholders.

Again, I don’t see why we should be diverting police resources from their efforts to solve real crimes towards towing the corporate line. Why is the system before not good enough where all rights holders have to do is complain about copyright infringement and action takes place as a result?

Technical Assistance

There’s a theme in all of this continuing here:

1. Each Party shall endeavor to provide on request and on mutually agreed terms and conditions, assistance in capacity building and technical assistance in improving enforcement of intellectual property rights for Parties to this Agreement and, where appropriate, for prospective Parties to this Agreement. Such capacity building and
technical assistance may cover such areas as:

(a) enhancement of public awareness on intellectual property rights;

(b) development and implementation of national legislation related to enforcement of intellectual property rights;

(c) training of officials on enforcement of intellectual property rights; and

(d) coordinated operations conducted at the regional and multilateral levels.

Basically, ACTA is practically trying to create an international copyright police force. How is copyright infringement more important than, say, human trafficking?

Creation of an ACTA Committee

I found this to be interesting:

1. The Parties hereby establish the ACTA Committee and each Party shall be represented on that Committee.

2. The Committee shall:

(a) review the implementation and operation of this Agreement;

(b) consider matters concerning the development of this Agreement

(c) consider in accordance with Article 6.4 any proposed amendments to this Agreement;

(d) approve in accordance with Article 6.5.2 the terms of accession to this Agreement of any Member of the WTO seeking to become Party to this Agreement; and

(e) consider any other matter that may affect the implementation and operation of this Agreement.

3. The Committee may decide to:

(a) establish ad hoc committees or working groups to assist the Committee in carrying out its responsibilities under paragraph 2, as well as, upon request, to assist prospective parties in joining this Agreement;

(b) seek the advice of non-governmental persons or groups;

(c) make recommendations regarding implementation and operation of the Agreement, including endorsing best practice guidelines related thereto;

(d) share with third parties information and best practices on reducing intellectual property rights infringements, including techniques for identifying and monitoring piracy and counterfeiting; and

(e) take such other action in the exercise of its functions as the Committee may
decide.

Judging by the wording, if ACTA isn’t sufficiently bad, rights holders can pressure this committee to make ACTA worse than what the text can be. In other words, this is the backdoor to an international three strikes law which has failed so spectacularly in France so far. So while a three strikes law isn’t explicitly in this agreement yet, it can be in the future.

This provision is particularly relevant in that case:

6. The Committee shall convene at least once every year unless the Committee decides otherwise. The first meeting of the Committee shall be held within a reasonable period of time after entry into force of this Agreement,

Escaping ACTA

This is somewhat interesting. If a country decides that ACTA just isn’t working out for them, it’ll take 180 days after written notification to get out of ACTA a per the following provision:

A Party may withdraw from this Agreement by means of a written notification to the Depositary. Such withdrawal shall take effect 180 days after the notification is received by the Depositary.

Our Summary

We set out to find out for ourselves whether some of the rumors we are hearing about are true or not as per the latest leaked document. A lot of them have been confirmed:

1. ACTA would have border security search your iPod – Confirmed dependent on the discretion of a given party

2. ACTA would divert police resources to enforcing copyright (both commercial and non commercial related) – Confirmed

3. ACTA would force countries to enforce a three strikes law – Confirmed via a backdoor provision

4. ACTA would send you to jail for downloading copyrighted material for non-commercial purposes – Confirmed for movies based on the criminal enforcement language

5. ACTA would push a global DMCA – Confirmed

6. ACTA would further restrict even American copyright laws – Confirmed

7. ACTA goes beyond the DMCA and further restricts copyright law – Confirmed

8. ACTA severely hampers human rights – Confirmed

9. ACTA goes beyond counterfeiting and deals with the much broader concept of copyright and intellectual property – Confirmed

10. ACTA representatives have mislead the public – Confirmed

Ultimately, it boils down to, “What awful things have you heard about ACTA?” and chances are, it’s true.

Further reading:

Michael Geist – ACTA Text Leaks: U.S. Concedes on Secondary Liability, Wants To Go Beyond DMCA on Digital Locks
Slashdot: ACTA Text Leaks; US Caves On ISPs, Seeks Super-DMCA

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