[Infowarrior] - Major ACTA Leak: Internet and Civil Enforcement Chapters With Country Positions

[Richard Forno]

Major ACTA Leak: Internet and Civil Enforcement Chapters With Country  
Positions

Monday March 01, 2010

http://www.michaelgeist.ca/content/view/4829/125/

On the heels of the leak of various country positions on ACTA  
transparency, today an even bigger leak has hit the Internet.  A new  
European Union document prepared several weeks ago canvasses the  
Internet and Civil Enforcement chapters, disclosing in complete detail  
the proposals from the U.S., the counter-proposals from the EU, Japan,  
and other ACTA participants.  The 44-page document also highlights  
specific concerns of individual countries on a wide range of issues  
including ISP liability, anti-circumvention rules, and the scope of  
the treaty.  This is probably the most significant leak to-date since  
it goes even beyond the transparency debate by including specific  
country positions and proposals.

The document highlights significant disagreement on a range of  
issues.  For example, on the issue of anti-circumvention legislation  
and access controls, the U.S. wants it included per the DCMA, but many  
other countries, including the EU, Japan, and New Zealand do not,  
noting that the WIPO Internet treaties do not require it.

A brief summary of the key findings are posted below, but much more  
study is needed.

Internet Enforcement Chapter

	• Canada has expressed concern with the title of the chapter  
("Special Measures Related to Technological Enforcement Means and the  
Internet") and the substance of the chapter
	• On the ISP safe harbour chapter, the leak identifies three  
proposals (consistent with an earlier NZ comment).  In addition to the  
U.S. proposal that was leaked earlier, there is a Japanese proposal  
and one from the EU.  Moreover, many countries have raised specific  
issues about the U.S. language.  For example, New Zealand notes that  
the safe harbour appears to cover Information Location Tool providers  
(ie. search engines), but that it wonders why there is a concern of  
liability to begin with.
	• Japan's alternative proposal calls for ISP liability based on  
knowledge of infringement.  It states that there may be liability if  
it is technically possible to prevent the infringement and the  
provider "knows or there is reasonable ground to know" that  
infringement is occurring.  There are additional provisions on the  
inclusion of a notice system and industry cooperation.
	• With respect to the requirement of an ISP policy that could include  
three strikes as a pre-requisite for qualifying for the safe harbour,  
New Zealand is opposed to the condition altogether.  Meanwhile, Japan  
notes that its law does not contain a policy requirement and it would  
have to consider whether it can agree to that requirement.
	• On the implementation of notice-and-takedown, Canada has noted that  
the relationship between third party liability and ISP limitation of  
liability is unclear.
	• On the anti-circumvention rules, which involves a U.S. attempt to  
implement a global DMCA, the EU would like to exclude access controls  
from the ambit of the provision.  They are not alone - New Zealand  
opposes their inclusion and Japan also takes the position that access  
controls are not required by the WIPO Internet treaties and is  
apparently concerned about the implications for its domestic law.   
There is no reference to a Canadian position, despite the fact that  
this goes beyond current Canadian law.

Civil Enforcement Chapter

	• the U.S., Japan, and the European Union want the civil enforcement  
powers to extend to any intellectual property right.  Canada,  
Singapore, and New Zealand seek a more limited treaty that covers only  
copyright and trademarks.
	• the EU is seeking injunctive relief powers against intermediaries  
whose services are used by a third party to infringe an IP right.  The  
EU is alone in focusing on intermediary injunctions.
	• on statutory damages, the EU seeks to limit damages to actual  
damages, while the U.S. is proposing statutory damages.   There is  
also dispute on the scope of the IP rights (all vs. just copyright and  
trademark).  Canada and NZ also want to limit or exclude damages in  
certain special cass.
	• on the disclosure of information related to investigations, the  
U.S. is pushing for very broad language, while the E.U. wants to limit  
with specific kinds of information (and Canada has proposed further  
limiting language).