[Infowarrior] - Putting Together the ACTA Puzzle: Privacy, P2P Major Targets

[Richard Forno]

Putting Together the ACTA Puzzle: Privacy, P2P Major Targets

Tuesday February 03, 2009

http://www.michaelgeist.ca/content/view/3660/125/

Negotiations on the Anti-Counterfeiting Trade Agreement resume next  
month in Morocco, but as the discussions drag on, details on the  
proposed treaty are beginning to emerge.  Obtaining information  
through official channels such as Freedom of Information requests has  
been very difficult; however, there is little doubt that lobby groups  
have been privy to inside information and so reliable sources have  
begun to sketch a fairly detailed outline of the proposed treaty.

There is some good news from the details that have started to emerge.   
First, the treaty is far from complete as there are six main chapters  
and some key elements have yet to be discussed.  Moreover, it is clear  
that there is significant disagreement on many aspects of the treaty  
with the U.S. and Japan jointly proposing language and many countries  
responding with potential changes or even recommendations that the  
language be dropped altogether.

If that is the good news, the bad news is that most other fears about  
the scope of ACTA are real.  The proposed treaty appears to have six  
main chapters: (1) Initial Provisions and Definitions; (2) Enforcement  
of IPR; (3) International Cooperation; (4) Enforcement Practices; (5)  
Institutional Arrangements; and (6) Final Provisions.  Most of the  
discussion to date has centred on the Enforcement of Intellectual  
Property Rights chapter.  As for the other chapters, the U.S. has  
supplied some proposed definitions and Canada supplied a "non-paper"  
on the institutional arrangements once a treaty is concluded that  
calls for the creation of an "ACTA Oversight Council" that would meet  
each year to discuss implementations, best practices, and assist other  
governments who are considering joining ACTA.

The work on Enforcement of IPR is broken down into four sections -  
civil enforcement, border measures, criminal enforcement, and Rights  
Management Technology/the Internet.

The Civil Enforcement proposals call for the availability of civil  
judicial procedures for the enforcement of any intellectual property  
right, though some countries would like this limited to copyright and  
trademark.  Parties to the treaty would be required to implement  
procedures that include the availability of statutory damages for  
copyright and trademark infringement (some countries would like this  
to be optional, while the U.S. would like the damages provisions  
expanded to patent infringement) as well as court costs.

Additional required remedies include orders to destroy the infringing  
goods without compensation.  The proposals also call for significant  
mandated information disclosure, including ordering alleged infringers  
to disclose information regarding any person or third parties involved  
in any aspect of the infringement (some countries want this deleted  
and others are seeking to preserve privacy protections).

The Border Measures proposals are also still subject to considerable  
disagreement.  Some countries are seeking de minimum rules, the  
removal of certain clauses, and a specific provision to put to rest  
fears of iPod searching customs officials by excluding personal  
baggage that contains goods of a non-commercial nature. The U.S. is  
pushing for broad provisions that cover import, export, and in-transit  
shipments.

The proposals call for provisions that would order authorities to  
suspend the release of infringing goods for at least one year, based  
only on a prima facie claim by the rights holder.  Customs officers  
would be able to block shipments on their own initiative, supported by  
information supplied by rights holders.  Those same officers would  
have the power to levy penalties if the goods are infringing.   
Moreover, the U.S. would apparently like a provision that absolves  
rights holders of any financial liability for storage or destruction  
of the infringing goods.

The Criminal Enforcement proposals make it clear that the U.S. would  
like ACTA to go well beyond cases of commercial counterfeiting.   
Indeed, their proposal would extend criminal enforcement to both (1)  
cases of a commercial nature; and (2) cases involving significant  
willful copyright and trademark infringement even where there is no  
direct or indirect motivation of financial gain.  In other words, peer- 
to-peer file sharing would arguably be captured by the provision.  The  
treaty would require each country to establish a laundry list of  
penalties - including imprisonment - sufficient to deter future acts  
of infringement.  Moreover, trafficking in fake packaging for movies  
or music would become a criminal act as would unauthorized camcording.

All of these provisions are obviously subject to change since the  
treaty is still very much a work-in-progress.  This may sound  
repetitive, but citizens of the many countries involved in the ACTA  
negotiations should not have to rely on leaks and speculation to learn  
what their governments are proposing.  All governments should support  
a more transparent process that begins with full public disclosures of  
drafts as well as more robust public consultation and participation.