One of the biggest stories coming out of the latest ACTA leak is how the U.S. has gradually caved on its digital lock demands. While the U.S. initially proposed an aggressive draft chapter it hoped would export U.S. law to all ACTA partners, it has now caved on many key issues with the European language carrying the day. The implications for anti-circumvention rules are significant, since the language is closer (though not identical) to the more flexible WIPO approach and confirms that Canada's Bill C-32 actually goes beyond would be needed to comply with ACTA, were it to conclude in its current form.
Before examining the changes, it should be noted that there remain doubts about whether this chapter even belongs in ACTA. Both Canada and Mexico have reserved the right to revisit all elements of this chapter at a later date, suggesting that both countries have concerns about the digital enforcement chapter. Moreover, there are still disputes over the scope of the Internet chapter, with the U.S., Australia, NZ, Canada, Singapore and Mexico seeking to limit the chapter to trademark and copyright, while Japan, the EU, and Switzerland want to extend it to all IP rights. Without resolving this issue, there is no digital enforcement in ACTA.
The Anti-Circumention Provision
The U.S. drafted the Internet chapter with language that would extend the WIPO Internet treaties by interpreting the anti-circumvention rules to include mandatory criminal and civil enforcement penalties as well as broad coverage of devices. That battle has now been largely lost - there is no reference to criminal or civil penalties and more narrow coverage of devices. The core digital lock provision - supported by the EU, Japan, Mexico, Singapore, Morocco, and Australia - sticks very closely to simply repeating the WIPO provision itself. For example, the WPPT provision states:
Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law
The current language in ACTA is as follows:
Each Party shall provide adequate legal protection and effective legal remedies [US: at least] against the circumvention of effective technological measures that [US: are used by, or at the direction of, ] authors, and [NZ: performers] performers and producers of phonograms [US: use] use in connection with the exercise of their rights that restrict acts in respect of their works, [NZ: performances] performances, and phonograms, which are not authorized by the authors, the [NZ: performers] performers or the producers of phonograms concerned or permitted by law. [US: In order to provide such adequate legal protection and effective legal remedies, each Party shall provide protection at least against:] Adequate legal protection shall be provided, in appropriate cases, at least against:
The square brackets make it clear the U.S. is still pushing to extend the provision, but this EU-inspired language is much closer to the flexible WIPO approach than what is found in the U.S. DMCA.
The ACTA provision then continues by specifying what constitutes adequate legal protection and effective legal remedies. It identifies two issues - unauthorized circumvention (not including copy controls) and the manufacture, importation, and distribution of circumvention devices. This latter provision extends WIPO by clearly incorporating devices, but not nearly as far as the current DMCA language.
From a Canadian perspective, it should be noted that Bill C-32 goes much further than ACTA would currently require for its anti-circumvention rules. The digital lock prohibitions could be amended to cover fair dealing circumvention since there is a provision that permit exceptions to legal protection for digital locks. Moreover, the prohibition on circumvention devices in C-32 goes well beyond what is required in ACTA. In other words, the bill could be amended from its present form and still be ACTA compliant.
The chapter also includes an ISP liability provision, though the three strikes language that once appeared in the drafts are now gone. There is still no agreement on the U.S. notice and takedown approach. Switzerland wants the entire ISP provision permissive rather than as a requirement. Japan is opposed to a takedown system, instead favouring more general language requiring ISPs to "take appropriate measures." Moreover, the chapter now includes greater certainty that there is no ISP monitoring requirement. While an earlier draft stated
"The Parties shall not impose a general monitoring requirement on providers when acting in accordance with this paragraph 3"
The current draft now says:
"No Party's legislation may condition the limitations in subparagraph (a) on an obligation that the online service provider monitors its services or [CH: in any other way] actively or affirmatively seeks facts indicating that infringing activity is occurring."