mgeist's blog

Syndicate content

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

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

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.

ACTA, ACTA Watch, ACTA Info

ACTA Guide, Part Three: Transparency and ACTA Secrecy

ACTA Guide, Part Three: Transparency and ACTA Secrecy
Part Three of the ACTA Guide (Part One on the agreement itself, Part Two on the official and leaked documents [update: Part Four on local effects]) focuses on the issue that has dogged the proposed agreement since it was first announced - the lack of transparency associated with the text and the talks. As yesterday's public letter from NDP MP Charlie Angus and the UK cross-party motion highlight, elected officials around the world have latched onto the transparency issue and demanded that their governments open ACTA to public scrutiny.

Part Three of the ACTA Guide (Part One on the agreement itself, Part Two on the official and leaked documents [update: Part Four on local effects]) focuses on the issue that has dogged the proposed agreement since it was first announced - the lack of transparency associated with the text and the talks. As yesterday's public letter from NDP MP Charlie Angus and the UK cross-party motion highlight, elected officials around the world have latched onto the transparency issue and demanded that their governments open ACTA to public scrutiny. Reviewing the ACTA transparency issue involves several elements: the public concern with ACTA secrecy, the source of the secrecy, and the analysis of whether ACTA secrecy is common when compared to other intellectual property agreements.

ACTA, ACTA Watch, ACTA Info

ACTA Guide, Part Two: The Documents (Official and Leaked)

ACTA Guide, Part Two: The Documents (Official and Leaked)
Negotiations in the 7th round of the ACTA talks open this morning in Mexico with civil enforcement issues on the agenda. Yesterday I posted on the developments to-date, including a chronology of talks, issues, and leaks that have led to this week's round of discussions. Part Two of the ACTA Guide provides links to the underlying documentation. Governments have been very tight lipped about the talks.

Negotiations in the 7th round of the ACTA talks open this morning in Mexico with civil enforcement issues on the agenda. Yesterday I posted on the developments to-date, including a chronology of talks, issues, and leaks that have led to this week's round of discussions. Part Two of the ACTA Guide provides links to the underlying documentation. Governments have been very tight lipped about the talks. Initially, only a brief summary following the conclusion of each round of the talks was provided. More recently, the agenda of each meeting is disclosed and a summary document (largely confirming Internet leaks) has been provided. Links to each of these documents is posted below.

ACTA

The ACTA Guide, Part One: The Talks To-Date

The ACTA Guide, Part One: The Talks To-Date
The 7th round of Anti-Counterfeiting Trade Agreement negotiations begins tomorrow in Guadalajara, Mexico. The negotiation round will be the longest to-date, with three and a half days planned to address civil enforcement, border measures, the Internet provisions, and (one hour for) transparency. Over the next five days, I plan to post a five-part ACTA Guide that will include sourcing for much of the discussion on ACTA, links to all the leaked documents, information on the transparency issue, and a look at who has been speaking out.

The 7th round of Anti-Counterfeiting Trade Agreement negotiations begins tomorrow in Guadalajara, Mexico. The negotiation round will be the longest to-date, with three and a half days planned to address civil enforcement, border measures, the Internet provisions, and (one hour for) transparency. Over the next five days, I plan to post a five-part ACTA Guide that will include sourcing for much of the discussion on ACTA, links to all the leaked documents, information on the transparency issue, and a look at who has been speaking out.

ACTA

A Global Threat to Freedoms (Open Letter)

A Global Threat to Freedoms (Open Letter)
Submitted on 10 December 2009 Updated on December 24th, 2009 Paris, December 10th 2009 - A worldwide coalition of Non-Governmental Organizations, consumers unions and online service providers associations publish an open letter to the European institutions regarding the Anti-Counterfeiting Trade Agreement (ACTA) currently under negotiation. They call on the European Parliament and the EU negotiators to oppose any provision that would undermine the fundamental rights and freedoms of citizens in Europe and across the world. Recently, European negotiators have submitted their overall position on the proposal put forward by the U.S Trade Representative for the Internet chapter of the ACTA.

Submitted on 10 December 2009 Updated on December 24th, 2009 Paris, December 10th 2009 - A worldwide coalition of Non-Governmental Organizations, consumers unions and online service providers associations publish an open letter to the European institutions regarding the Anti-Counterfeiting Trade Agreement (ACTA) currently under negotiation. They call on the European Parliament and the EU negotiators to oppose any provision that would undermine the fundamental rights and freedoms of citizens in Europe and across the world. Recently, European negotiators have submitted their overall position on the proposal put forward by the U.S Trade Representative for the Internet chapter of the ACTA. For the moment, it is still unknown. But the European Union must firmly oppose the dangerous measures secretly being negotiated. They cover not only "three strikes" schemes, but also Internet service providers liability, which would result in Internet filtering. Other dispositions would undermine interoperability and usability of digitial music and films. The first signatories of the open letter include: Consumers International (world federation of 220 consumer groups in 115 countries), EDRi (27 European civil rights and privacy NGOs), the Free Software Foundation (FSF), the Electronic Frontier Foundation (EFF), ASIC (French trade association for web2.0 companies), and civil liberties organizations from all around Europe (9 Member States so far...). The letter is still open for signature by other organizations. ACTA: A Global Threat to Freedoms open letter The Anti-Counterfeiting Trade Agreement (ACTA) is a broad intergovernmental agreement under negotiation ranging from the key social issue of access to medicine[1] to criminal Internet regulation. We fear it could seriously hinder European innovation in the digital single market while undermining fundamental rights and democracy at large. The negotiation process itself raises important questions of transparency and due democratic process, given that the content of the draft agreement has been kept secret for more than 18 months, although some details about the proposals recently leaked to the public. More worrying still, while the European Parliament has been denied access to the documents, US industry has been granted access to them, albeit only after signing non-disclosure agreements. A recent analysis by the European Commission of the ACTA Internet chapter[2] proves that the topics under discussion go far beyond the current body of EU law. Most importantly, the Commission's analysis confirms that the current draft of ACTA would profoundly restrict the fundamental rights and freedoms of European citizens, most notably the freedom of expression and communication privacy. These are very much at risk, since the current draft pushes for the implementation of three-strikes schemes and content filtering policies by seeking to impose civil and criminal liability on technical intermediaries such as internet service providers. The text would also radically erode the exercise of interoperability that is essential for both consumer rights and competitiveness. Consequently, we urge the Parliament to call on European negotiators to establish transparency in the negotiation process and publish the draft agreement, and not to accept any proposal which would undermine citizens' rights and freedoms. Furthermore, we urge the Parliament to make an unequivocal statement to the Commission and Council that any agreement which does not respect these core principles would force the Parliament to reject the entire text. [1] See: http://www.oxfam.org/en/pressroom/pressrelease/2009-07-15/criminalize-generic-medicines-hurt-poor-countries [2] See: http://sharemydoc.org/files/philip/ec_analysis_of_acta_internet_chapter.pdf

acta

ACTA Negotiations, Day Three: Secret Talks on Transparency

ACTA Negotiations, Day Three: Secret Talks on Transparency
The current round of ACTA negotiations wrap up later today in Seoul, Korea.  Having spent the first day focused on the now-leaked Internet provisions and the second day on the leaked criminal provisions, negotiators will spend this morning discussing whether they should make the draft treaty public.  Many countries continue to face pressure on the transparency issue, with KEI posting a public letter to U.S. President Barack Obama this week on the issue. Past indications are that there is a split - some countries favour making the draft available immediately, while others prefer ongoing secrecy until the treaty is completed.  Compromise positions apparently include allowing individual countries to make available text for which they are responsible.

The current round of ACTA negotiations wrap up later today in Seoul, Korea.  Having spent the first day focused on the now-leaked Internet provisions and the second day on the leaked criminal provisions, negotiators will spend this morning discussing whether they should make the draft treaty public.  Many countries continue to face pressure on the transparency issue, with KEI posting a public letter to U.S. President Barack Obama this week on the issue. Past indications are that there is a split - some countries favour making the draft available immediately, while others prefer ongoing secrecy until the treaty is completed.  Compromise positions apparently include allowing individual countries to make available text for which they are responsible.

At this stage, even ACTA supporters should be supportive of greater transparency.  First, everything seems to leak anyways, so the substance of the treaty is already broadly known.  Of course, there are specifics that have been shielded from public view, but there is enough out there to have generated an enormous backlash.  Second, ACTA is quickly becoming so broadly discredited that it will be nearly impossible to garner public support for the treaty. "The secret copyright treaty" is hardly a selling feature for a treaty that may be dead-on-arrival in the minds of citizens around the world.  Third, it is time for countries to make transparency a condition of participation. I have my doubts about the treaty as a whole - the recent Internet leaks should make it a non-starter from a Canadian perspective - but even if the substance is put to the side, governments should not be supporting secretive copyright talks. 

The talks will end at 12:30 (Seoul time) with the release of a joint statement describing who participated along with a generic statement indicating discussions focused on Internet enforcement, criminal provisions, and transparency matters.  It will conclude by indicating that the next round will be hosted by Mexico (most likely) in early 2010.  But on a day devoted to secret talks on transparency, governments should drop the diplomatic language and be prepared to open up or get out.

ACTA Negotiations, Day Three: Secret Talks on Transparency

ACTA Negotiations, Day Three: Secret Talks on Transparency
The current round of ACTA negotiations wrap up later today in Seoul, Korea.  Having spent the first day focused on the now-leaked Internet provisions and the second day on the leaked criminal provisions, negotiators will spend this morning discussing whether they should make the draft treaty public.  Many countries continue to face pressure on the transparency issue, with KEI posting a public letter to U.S. President Barack Obama this week on the issue. Past indications are that there is a split - some countries favour making the draft available immediately, while others prefer ongoing secrecy until the treaty is completed.  Compromise positions apparently include allowing individual countries to make available text for which they are responsible.

The current round of ACTA negotiations wrap up later today in Seoul, Korea.  Having spent the first day focused on the now-leaked Internet provisions and the second day on the leaked criminal provisions, negotiators will spend this morning discussing whether they should make the draft treaty public.  Many countries continue to face pressure on the transparency issue, with KEI posting a public letter to U.S. President Barack Obama this week on the issue. Past indications are that there is a split - some countries favour making the draft available immediately, while others prefer ongoing secrecy until the treaty is completed.  Compromise positions apparently include allowing individual countries to make available text for which they are responsible.

At this stage, even ACTA supporters should be supportive of greater transparency.  First, everything seems to leak anyways, so the substance of the treaty is already broadly known.  Of course, there are specifics that have been shielded from public view, but there is enough out there to have generated an enormous backlash.  Second, ACTA is quickly becoming so broadly discredited that it will be nearly impossible to garner public support for the treaty. "The secret copyright treaty" is hardly a selling feature for a treaty that may be dead-on-arrival in the minds of citizens around the world.  Third, it is time for countries to make transparency a condition of participation. I have my doubts about the treaty as a whole - the recent Internet leaks should make it a non-starter from a Canadian perspective - but even if the substance is put to the side, governments should not be supporting secretive copyright talks. 

The talks will end at 12:30 (Seoul time) with the release of a joint statement describing who participated along with a generic statement indicating discussions focused on Internet enforcement, criminal provisions, and transparency matters.  It will conclude by indicating that the next round will be hosted by Mexico (most likely) in early 2010.  But on a day devoted to secret talks on transparency, governments should drop the diplomatic language and be prepared to open up or get out.

The ACTA Internet Chapter: Putting the Pieces Together

The ACTA Internet Chapter: Putting the Pieces Together
The Anti-Counterfeiting Trade Agreement negotiations continue in a few hours as Seoul, Korea plays host to the latest round of talks.  The governments have posted the meeting agenda, which unsurprisingly focuses on the issue of Internet enforcement [UPDATE 11/4: Post on discussions for day two of ACTA talks, including the criminal enforcement provisions][UPDATE 11/5: Post on discussions for day three on transparency].  The United States has drafted the chapter under enormous secrecy, with selected groups granted access under strict non-disclosure agreements and other countries (including Canada) given physical, watermarked copies designed to guard against leaks.

The Anti-Counterfeiting Trade Agreement negotiations continue in a few hours as Seoul, Korea plays host to the latest round of talks.  The governments have posted the meeting agenda, which unsurprisingly focuses on the issue of Internet enforcement [UPDATE 11/4: Post on discussions for day two of ACTA talks, including the criminal enforcement provisions][UPDATE 11/5: Post on discussions for day three on transparency].  The United States has drafted the chapter under enormous secrecy, with selected groups granted access under strict non-disclosure agreements and other countries (including Canada) given physical, watermarked copies designed to guard against leaks.

Despite the efforts to combat leaks, information on the Internet chapter has begun to emerge (just as they did with the other elements of the treaty). [Update 11/6: Source document now posted]  Sources say that the draft text, modeled on the U.S.-South Korea free trade agreement, focuses on following five issues:

1.   Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.

2.   A requirement to establish third-party liability for copyright infringement.

3.   Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs).  For example, in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content.  Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30.  They include policies to terminate subscribers in appropriate circumstances.  Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.

4.   Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements.  For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules.  These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception.  Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices.  The current draft does not include any obligation to ensure interoperability of DRM.

5.   Rights Management provisions, also modeled on U.S. free trade treaty language.

The ACTA Document and Obama Transparency

The ACTA Document and Obama Transparency
There are many reports about the release this week of an ACTA summary document that was first made available on the USTR website.  These articles suggest that this reflects new support for transparency from the Obama administration.  While it may be true that the administration supports greater transparency, making that connection in this case is misleading.  The document is a negotiated text between all the ACTA countries (this was made clear in the DFAIT consultation).

There are many reports about the release this week of an ACTA summary document that was first made available on the USTR website.  These articles suggest that this reflects new support for transparency from the Obama administration.  While it may be true that the administration supports greater transparency, making that connection in this case is misleading.  The document is a negotiated text between all the ACTA countries (this was made clear in the DFAIT consultation).  Some countries (Canada among them) are supportive of greater transparency, others are not.  It is not entirely clear where the U.S. stands.  Moreover, it is not just the U.S. that made the document available - all ACTA partners are entitled to do so (the Canadian version is here).  Finally, while it is not a bad document, there is still far more information available online from non-governmental sources.  A commitment to transparency would mean making available actual documents including draft text and "non-papers" used as the basis for discussion.

Canada's ACTA Briefing, Part Five: The Fight Over a De Minimis Exception

Canada's ACTA Briefing, Part Five: The Fight Over a De Minimis Exception
One of the most interesting points of discussion/disagreement during the ACTA briefing arose from the possibility of including a de minimus exception within the Border Measures chapter. The exception is presumably designed to ensure that tougher border measures does not result in iPod searching border guards.  Canadian officials indicated that they had proposed a de minimis exception and later acknowledged that several negotiators have put forward their own de minimis language.

One of the most interesting points of discussion/disagreement during the ACTA briefing arose from the possibility of including a de minimus exception within the Border Measures chapter. The exception is presumably designed to ensure that tougher border measures does not result in iPod searching border guards.  Canadian officials indicated that they had proposed a de minimis exception and later acknowledged that several negotiators have put forward their own de minimis language.  In the subsequent discussion, it became clear that there will be a big fight over this provision, with some groups concerned that it would send a signal that purchasing counterfeit products for personal use is acceptable or that it could lead to the importation of counterfeit medicines.