[Infowarrior] - ACTA Internet Chapter Leaks: Renogotiates WIPO, Sets 3 Strikes as Model

[Richard Forno]

ACTA Internet Chapter Leaks: Renogotiates WIPO, Sets 3 Strikes as Model

Sunday February 21, 2010

http://www.michaelgeist.ca/content/view/4808/125/

Several months after a European Union memo discussing the ACTA  
Internet chapter leaked, the actual chapter itself has now leaked.   
First covered by PC World, the new leak fully confirms the earlier  
reports and mirrors the language found in the EU memo.  This is the  
chapter that required non-disclosure agreements last fall.

The contents are not particulary surprising given the earlier leaks,  
but there are three crucial elements: notice-and-takedown, anti- 
circumvention rules, and ISP liability/three strikes.

Notice-and-Takedown

The notice-and-takedown provision, which is a pre-requisite for  
intermediary safe harbour from liability, requires:

an online service provider expeditiously removing or disabling access  
to material or activity, upon receipt of legally sufficient notice of  
alleged infringement, and in the absence of a legally sufficient  
response from the relevant subscriber of the online service provider  
indicating that the notice was the result of a mistake or  
misidentification. except that the provisions of (II) shall not be  
applied to the extent that the online service provider is acting  
solely as a conduit for transmissions through its system or network.

This would represent a change in Canadian law.  Both prior copyright  
reform bills (C-60 and C-61) established notice-and-notice systems,  
rather than notice-and-takedown.  There is currently an informal  
agreement to use notice-and-notice, which has proven effective (the  
Entertainment Software Association of Canada told the Liberal  
copyright roundtable earlier this month that 71% of subscribers who  
receive a notice do not repost the content within a week).  ACTA would  
trump domestic law and the current Canadian business practice.

Anti-Circumvention

The anti-circumvention provisions are even more problematic as they  
effectively represent a renegotiation of the WIPO Internet treaties.   
The proposed ACTA provision states:

In implementing Article 11 of the WIPO Copyright Treaty and Article 18  
of the WIPO Performances and Phonograms Treaty regarding adequate  
legal protection and effective legal remedies against the  
circumvention of effective technological measures that are used by  
authors, performers or producers of phonograms in connection with the  
exercise of their rights and that restrict unauthorized acts in  
respect of their works, performances, and phonograms, each Party shall  
provide civil remedies, as well as criminal penalties in appropriate  
cases of willful conduct that apply to:

(a) the unauthorized circumvention of an effective technological  
measure that controls access to a protected work,  performance, or  
phonogram; and

(b) the manufacture, importation, or circulation of a technology,  
service, device, product, component, or part thereof, that is:  
marketed or primarily designed or produced for the purpose of  
circumventing an effective technological measure; or that has only a  
limited commercially significant purpose or use other than  
circumventing an effective technological measure.

Article 11 of the WIPO Copyright Treaty (the anti-circumvention  
provision) was intentionally left broad in scope to allow for various  
implementations.  The treaty merely requires "adequate legal  
protection and effective legal remedies against the circumvention of  
effective technological measures."  It does not require access  
controls nor prohibitions on the manufacture or distribution of  
devices that can be used to circumvent.  Indeed, when the DMCA was  
being discussed in the United States, Bruce Lehman, the Under- 
Secretary of State, acknowledged that the treaties could be  
implemented without a devices provision.  Moreover, he stated that the  
DMCA would be used to pressure other countries into following the U.S.  
example:

When that legislation is in effect, then we will have a template that  
we can use, that the Trade Representative can use, that we in the  
Commerce Department can use, the State Department can use, when we are  
in negotiations with other governments to advise them as to what they  
need to do to implement their responsibilities in these treaties to  
provide effective remedies.

ACTA is therefore viewed as a mechanism to win the policy battle lost  
in Geneva in 1996.  It would force countries like Canada to adopt the  
U.S. approach, even though the treaty explicitly envisioned other  
possibilities.

Three Strikes/Graduated Response

The draft chapter finally puts to rest the question of whether ACTA in  
its current form would establish a three strikes and you're out model.  
The USTR has recently emphatically stated that it does not establish a  
mandatory three strikes system.  The draft reveals that this is  
correct, but the crucial word is mandatory.  The draft U.S. chapter  
does require intermediaries to play a more aggressive role in policing  
their networks and the specific model cited is the three-strikes  
approach.  In other words, the treaty may not specifically require  
three-strikes, but it clearly encourages it as the model to qualify as  
a safe harbour from liability.  The specific provision, which is  
another pre-requisite for intermediary safe harbour from liability,  
states:

an online service provider adopting and reasonably implementing a  
policy to address the unauthorized storage or transmission of  
materials protected by copyright or related rights except that no  
Party may condition the limitations in subparagraph (a) on the online  
service provider's monitoring its services or affirmatively seeking  
facts indicating that infringing activity is occurring;

And what is an example of a policy provided in ACTA?  The treaty states:

An example of such a policy is providing for the termination in  
appropriate circumstances of subscriptions and accounts in the service  
provider's system or network of repeat infringers.

This leaks shows how deceptive the USTR has been on this issue - on  
the one hand seeking to assure the public that there is no three- 
strikes and on the other specifically citing three strikes as its  
proposed policy model.  Given the past U.S. history with anti- 
circumvention - which started with general language and now graduates  
to very specific requirements - there is little doubt that the same  
dynamic is at play with respect to three strikes.

 From a process perspective, leaks coming out of the Mexico ACTA talks  
revealed that the ISP provisions were discussed, but the anti- 
circumvention provisions were not.  This suggests that the anti- 
circumvention provisions from the U.S. are the only proposal currently  
on the table.  According to a New Zealand official, there may be  
alternate proposals for the three-strikes model, all of which will  
presumably be discussed during the next round of negotiations in April  
in New Zealand.