[Infowarrior] - ACTA Guide: Part Four: What Will ACTA Mean To My Domestic Law?

[Richard Forno]

ACTA Guide: Part Four: What Will ACTA Mean To My Domestic Law?

Thursday January 28, 2010

http://www.michaelgeist.ca/content/view/4741/125/

Questions about ACTA typically follow a familiar pattern - what is it  
(Part One of the ACTA Guide), do you have evidence (Part Two), why is  
this secret (Part Three), followed by what would ACTA do to my  
country's laws?  This fourth question is the subject of this post,  
Part Four of the ACTA Guide.  The answer is complex since the impact  
of ACTA will differ for each participating country: some will require  
limited reforms, others very significant reforms, and yet others  
(particularly those not even permitted to participate) complete  
overhauls of their domestic laws.

That is not the answer that the participating countries have been  
providing. Instead, most have sought to dampen fears by implausibly  
claiming that ACTA will not result in any domestic changes in their  
own country.  With that in mind, we get:

	• the European Union stating "ACTA will not go further than the  
current EU regime for enforcement of IPRs"
	• the USTR maintaining that ACTA will not rewrite U.S. law
	• Australia's DFAT confirming they do not expect to see major  
domestic changes to Australian law as a result of the ACTA
	• New Zealand stating "ACTA will not change existing standards"
	• Canadian Industry Minister Tony Clement assuring the House of  
Commons that ACTA will be subservient to domestic rules

Of course, if all of this is true, skeptics might reasonably ask why  
ACTA is needed at all.  The truth is that ACTA will require changes in  
many countries that ratify the agreement.  The EU Commissioner- 
designate for the Internal Market, Michel Barnier, recently  
acknowledged precisely that during hearings in Brussels.  Meanwhile,  
U.S. lobby groups have stated that they view ACTA as a mechanism to  
pressure Canada into new copyright reforms.

While Canadian officials may put on a brave face regarding the  
prospect of ACTA-inspired domestic reforms, the reality is that behind- 
the-scenes this has been a major concern for officials since before  
ACTA was officially unveiled.  I recently obtained under the Access to  
Information Act a copy of a response to the U.S. ACTA discussion paper  
from 2007 written by Doug George, who until recently led Canada's  
delegation on ACTA at DFAIT.  George's response takes great pains to  
emphasize the differences between countries and the need to take this  
into account:

While there may be a need to coordinate our efforts at the  
international level to fight counterfeiting and piracy, including  
through the negotiation of an ACTA, countries have implemented  
different systems and legislation to address this issue.  This needs  
to be taken into account in our discussions. For instance, the role of  
governments versus rights holders in enforcing IPR can vary greatly  
among the various systems, and specific systems for implementation  
have developed in different directions.

Canada's fears have quite obviously been realized as the vision of  
ACTA proponents is a one-size fits all solution based on the U.S.  
model of IP enforcement.  This will, by its very definition, require  
domestic change in many countries.

As for the specifics of domestic reforms, they depend on the country.  
Countries without statutory damages would need to add those to their  
laws.  Countries without DMCA-style anti-circumvention rules or a  
notice-and-takedown system would require those changes.  Countries  
without anti-camcording rules or new border enforcement measures or a  
host of other ACTA-related provisions would need to address those  
concerns.  There has been some preliminary analysis of possible  
changes in various countries. These include:

	• Global (Gwen Hinze)
	• Global (Hinze)
	• Global (Hinze and Eddan Katz)
	• United States (Katz)
	• United States (Jamie Love)
	• European Union (FFII)
	• European Unon (FFII)
	• Australia (Kim Weatherall)
	• New Zealand (Jonathon Penney)
	• New Zealand (Cyberlaw.org)
	• Canada (CIPPIC)
	• Canada (CIPPIC)

Not to be forgotten are those countries that are not part of the ACTA  
discussions.  The exclusion of many major trading partners (and the  
alleged leading sources of counterfeit products) are a major story  
since those countries will likely also face pressure to implement ACTA  
despite not having had the opportunity to participate in the talks.  I  
discussed that issue - and the need for developing countries to demand  
a seat at the table - last year in this piece.