[Infowarrior] - EU ACTA Analysis Leaks: Confirms Plans For Global DMCA

[Richard Forno]

EU ACTA Analysis Leaks: Confirms Plans For Global DMCA, Encourage 3  
Strikes Model
PDF

http://www.michaelgeist.ca/content/view/4575/125/

Monday November 30, 2009

The European Commission analysis of ACTA's Internet chapter has  
leaked, indicating that the U.S. is seeking to push laws that extend  
beyond the WIPO Internet treaties and beyond current European Union  
law (the EC posted the existence of the document last week but refused  
to make it publicly available).  The document contains detailed  
comments on the U.S. proposal, confirming the U.S. desire to promote a  
three-strikes and you're out policy, a Global DMCA, harmonized  
contributory copyright infringement rules, and the establishment of an  
international notice-and-takedown policy.

The document confirms that the U.S. proposal contains seven sections:

Paragraph 1 - General obligations.  These focus on "effective  
enforcement procedures" with expeditious remedies that deter further  
infringement.  The wording is similar to TRIPs Article 41, however,  
the EU notes that unlike the international treaty provisions, there is  
no statement that procedures shall be fair, equitable, and/or  
proportionate.  In other words, it seeks to remove some of the balance  
in the earlier treaties.

Paragraph 2 - Third party liability.  The third party liability  
provisions focus on copyright, though the EU notes that it could  
(should) be extended to trademark and perhaps other IP infringement.   
The goal of this section is to create an international minimum  
harmonization regarding the issue of what is called in some Member  
States "contributory copyright infringement".  The U.S. proposal would  
include "inducement" into the standard, something established in the  
U.S. Grokster case, but not found in many other countries.  This would  
result in a huge change in domestic law in many countries (including  
Canada) as the EU notes it goes beyond current eu law.

Paragraph 3 - Limitations on 3rd Party Liability.  This section spells  
out how an ISP may qualify for a safe harbour from the liability  
established in the earlier section.  These include an exemption for  
technical processes such as caching.  As reported earlier, ACTA would  
establish a required notice-and-takedown system, which goes beyond  
Canadian law (and beyond current EU law).  Moreover, ACTA clearly  
envisions opening the door to a three-strikes and you're out model, as  
the EU document states:

EU understands that footnote 6 provides for an example of a reasonable  
policy to address the unauthorized storage or transmission of  
protected materials. However, the issue of termination of  
subscriptions and accounts has been subject to much debate in several  
Member States. Furthermore, the issue of whether a subscription or an  
account may be terminated without prior court decision is still  
subject to negotiations between the European Parliament and the  
Council of Telecoms Ministers regarding the Telecoms Package.

Paragraph 4 - Anti-circumvention Provisions.  ACTA would require civil  
and criminal penalties associated with anti-circumvention provisions  
(legal protection for digital locks).  The EU notes that this goes  
beyond the requirements of the WIPO Internet treaties and beyond  
current EU law which "leaves a reasonable margin of discretion to  
Member States."  The EU also notes that there is no link between the  
anti-circumvention provisions and copyright exceptions.  The U.S.  
proposal also requires the anti-circumvention provisions to apply to  
TPMs that merely protect access to a work (rather than reproduction or  
making available).   This would again go beyond current EU law to  
include protection against circumventing technologies like region  
coding on DVDs.  From a Canadian perspective, none of this is  
currently domestic law.  As previously speculated, the clear intent is  
to establish a Global DMCA.

Paragraph 5 - Civil and Criminal Enforcement of Anti-Circumvention.   
This section requires both civil and criminal provisions for the anti- 
circumvention rules, something not found in the WIPO Internet  
treaties. The anti-circumvention provisions are also designed to stop  
countries from establishing interoperability requirements (ie. the  
ability for consumers to play purchased music on different devices).   
The EU notes that this not consistent with its law, which states  
"Compatibility and interoperability of the different systems should be  
encouraged."  Of course, might reasonable ask why such a provision is  
even in ACTA.

Paragraph 6 - Rights Management Information protection. This section  
includes similar criminal and civil requirements for rights management  
information.

Paragraph 7 - Limitations to Rights Management Information protection.

In summary, the EU analysis confirms the earlier leak (though the  
Internet chapter has seven sections, rather than five).  The fears  
about the U.S. intent with respect to ACTA are confirmed - extending  
the WIPO Internet treaties, creating a Global DMCA, promoting a three- 
strikes and you're out model, even stopping efforts to create  
interoperability mandates.  ACTA would render current Canadian  
copyright law virtually unrecognizable as the required changes go far  
beyond our current rules (and even those contemplated in prior reform  
bills).  This begs the question of whether the Department of Foreign  
Affairs negotiation mandate letter really goes this far given the  
domestic changes that would be required.  This latest leak also  
reinforces the need for all governments to come clean - releasing both  
the ACTA text and government analysis of the treaty should be a  
condition of any further participation in the talks.