ISP Liability, Anti-Circumvention Provisions Continue to Roil ACTA Observers
The U.S. may have dropped its demand that ISPs bear some liability for online infringement, but key provisions in the Anti-Counterfeiting Trade Agreement (ACTA) remain controversial after last month’s negotiations in Washington, said a professor monitoring the talks. The latest ACTA draft was supposed to be kept confidential but leaked over the weekend. Fears persist of a “back-door” requirement of a graduated response to Internet piracy, overly restrictive anti-circumvention provisions, and criminal sanctions, said Michael Geist, University of Ottawa Canada research chair of Internet and e-commerce law, and others watching the talks.
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The most important story of the latest draft could be how close countries are to agreement, Geist wrote on his blog Monday. The Internet enforcement chapter has been among the most contentious since the U.S. proposed globalizing the Digital Millennium Copyright Act and “raised the prospect of three strikes and you're out,” he said. The U.S. backed off its demand for ISP secondary liability but still wants to set digital lock rules that exceed the WIPO Internet treaties “and were even rejected by its own courts,” he wrote.
The “key takeaways” from the revised Internet chapter include ongoing disagreement over whether the treaty should cover all intellectual property or just copyright and trademark, as the U.S. wants, Geist said. The European Commission earlier questioned the need for a treaty with such a narrow scope (CD July 14 p10). In addition, each party would now need to provide mechanisms to address copyright online, including unlawful file-sharing and streaming, but any procedures must comply with the principles of free speech, fair process and privacy, he said.
Article 2.18.3 now would require countries to “endeavor to promote cooperative efforts within the business community to effectively address … infringement while preserving legitimate competition and consistent with each Party’s laws.” Governments could give authorities power to order ISPs to disclose subscriber information, Geist said.
The treaty’s anti-circumvention provisions “remain somewhat in play,” Geist said: Everyone generally agrees on broad language that largely tracks the WIPO Internet treaties in requiring adequate legal protection and effective legal remedies to prevent circumvention of technical protection measures. Instead of stopping there, the U.S. is still pushing to define adequate legal protection and effective legal remedies, to limit the flexibility that all governments agreed to in the WIPO Internet treaties, he said. That approach would mandate anti-circumvention protection of access controls and include several bans on devices that can be used to circumvent, possibly even including the marketing of such devices, he said. The U.S. wants a provision clarifying that circumvention doesn’t require copyright infringement -- language that seems to contradict recent U.S. case law, would raise constitutional issues in Canada and is opposed by the EU, Geist said.
Article 2.18.3 is still an attempt to introduce a three-strikes approach to online infringement through the back door, European Parliament Member Christian Engström, of Sweden and the Pirate Party, said in an interview Tuesday. Requiring governments and the EU to promote cooperation in the business community to address copyright infringement can’t mean anything but forcing ISPs to act as private police against their customers, he said. Earlier language specifically called for cooperation between rights holders and ISPs, and there’s no reason to think the revised paragraph has a different meaning, he said.
Even without the ISP liability language, Article 2.18.3 still seeks to impose private, contractual policies restricting Internet access, said a spokesman for French Internet rights advocacy group La Quadrature du Net. “Given how crucial is Internet access for fundamental rights, it cannot be restricted according to private interests and contracts.” The draft proposes that signers “may” give relevant authorities the right to order ISPs to disclose customer data to rights holders, the spokesman said. Other provisions make it clear that the permissive wording could change once the final version is agreed on, he said. The key problem is that governments seeking to get the treaty through their parliaments will assure lawmakers the language is voluntary, only to switch tactics once it’s adopted, said Engström.
The document’s criminal sanctions provisions still include “the dreadfully vague notion of ‘commercial scale’ as a boundary” for enforcement, the La Quadrature du Net spokesman said. From a rights holder perspective, any activity carried out by millions of people can be considered “commercial scale,” a dangerous notion that collides with legitimate fair uses, he said. The term should be replaced with “commercial motive” but it has been included on purpose to ensure that ACTA changes national criminal laws, he said. That’s a “perfect illustration that it is not a trade agreement,” he said.
The European Commission has no authority to impose criminal sanctions, and it’s using ACTA to work around that problem, Engström said. Once EU governments impose these penalties, the EC will be able to step in and set EU-wide regulations, he said. It’s unacceptable for governments to lay the groundwork for secret legislation through ACTA which legislators will be expected to rubber-stamp, he said. The EC will update EU lawmakers Wednesday on ACTA negotiations, followed by a plenary session debate. The next negotiating round is in Japan this month, the parties said in August.