There will soon be a big new beast in the IP jungle. And while the creature comes with the seemingly innocuous acronym of ACTA, cyber activists and copyright mavens fear that it will pave the way for a Global DMCA (Digital Millennium Copyright Act) that will significantly impact on ordinary people's privacy, and erode civil liberties. Moreover, they warn, the secrecy surrounding the ACTA negotiations raises important questions about representative democracy, and demonstrates the extent to which the developed world remains determined to dominate and control the developing world. For the research community, says University of Ottawa's Michael Geist, ACTA will make Open Access (OA) even more urgent. However, he cautions, if ACTA succeeds in propagating the bruising statutory damages rules used in US copyright infringement cases it could threaten the institutional repository movement.
An initiative of the US, the European Commission, Switzerland and Japan, the Anti-Counterfeiting Trade Agreement (ACTA) was launched in October 2007, although negotiations didn't begin until the following spring. Subsequently Australia, Canada, Jordan, Mexico, Morocco, New Zealand, the Republic of Korea, Singapore and the United Arab Emirates have also joined the negotiations.
Given the health and safety implications of, say, counterfeit drugs, most people might assume that anything that can help prevent mass counterfeiting would be a good thing, and wish ACTA negotiators Godspeed.
But as time has passed a number of important questions have arisen about ACTA. Why, for instance, are the negotiations being conducted in secret? And why does ACTA include an Internet Chapter (and civil enforcement and criminal provisions) evidently focused not on preventing counterfeiting, but pushing TRIPS (the 1994 WTO-negotiated Trade-Related Aspects of Intellectual Property Rights agreement) further down the road of IP maximalism — to create a kind of TRIPS-Plus?
There is, it seems, more to ACTA than meets the eye. Indeed if one consults the EC fact sheet published in 2007 (and updated in 2009) the objective of ACTA is more widely described as being that of facilitating "international cooperation" to create a "legal framework for enforcement of (IPRs)" and "enforcement practices" to match. This is necessary, the document explains, in order to stem a worldwide "proliferation of IPR infringements".
Unsurprisingly many have concluded that ACTA is somewhat of a misnomer — a conclusion confirmed in 2008, when a leaked ACTA document turned up on the Internet. This revealed that the objectives of those negotiating ACTA were considerably more ambitious than the public had been led to believe.
Amongst other things, the document suggested that there were plans to force ISPs to provide customer information, to allow border guards to inspect laptops, cameras, iPods and other devices; and, moreover, to do so even where no complaint had been made by a rights-holder. Additionally, reported Canada's Globe and Mail , "The agreement would permit guards and others to conduct 'ex parte' searches of property or individuals, meaning a lawyer would not have to be present."
The leaked ACTA document triggered a firestorm of criticism in the blogosphere, forcing the EC to respond by publishing a Q&A document denying that iPods would be seized, and stressing that ACTA "is not about limiting civil liberties or harassing consumers".
In any case, the EC rebuttal pointed out, it is too early to say what ACTA will or will not consist of since, "There is no ACTA text", and "negotiations are still ongoing." In short, "The process is at an early stage, and most alarmist ideas that circulate on the web or in the press are speculations which do not reflect the true nature of the ACTA negotiations."
By now a number of core issues had emerged — including fears that ACTA would unjustifiably invade the privacy of ordinary citizens, that it would erode civil liberties generally, and that it would put the developing world at further disadvantage in the global economy.
Third party liability has also become a controversial issue, with further leaked documents suggesting there are plans to limit the safe harbour rules for ISPs. This would have significant implications for internet service providers and web-based content providers, since they could become liable for any infringing content they distributed.
The bizarre behaviour of the Office of the US Trade Representative (USTR) has served only to increase suspicion: When civil society activists requested access to ACTA documents under Freedom of Information legislation, for instance, they were told that access was not possible for reasons of "national security."
With growing media interest the USTR eventually agreed to provide copies of the controversial "Internet Chapter" to several public interest groups, including Public Knowledge and the Center for Democracy and Technology (CDT) — but only if they first signed a non-disclosure agreement (NDA) and did not take any of the documents they were shown away with them.
More recently, the research community has begun to think through what ACTA might mean for it too — particularly the chilling effect it could have on the current trend for making research papers freely available in institutional repositories on an open-access basis. There are fears, for instance, that ACTA will propagate US-style statutory damages legislation. This could make universities increasingly reluctant to permit researchers to self-archive the papers that they have published in scholarly journals.
Meanwhile further leaked documents have continued to appear on the Web. Last October, for instance, an EU commentary on a US proposal revealed that US negotiators are pressing for an account-termination system to be put in place for copyright infringement, with "civil remedies, as well as criminal penalties".
The cult blog Boing Boing interpreted this as meaning that ACTA negotiators want to see widespread use of the controversial three strikes approach to copyright infringement. This, said Boing Boing, would threaten ordinary citizens with the withdrawal of their Internet service if a member of their household was even suspected of copyright infringement. Boing Boing added that the third partly liability issue could also lead to the demise of web-based services like Flickr, YouTube and Blogger.
The problem for the public, however, is that there is insufficient information available to judge how great a threat ACTA represents. As Internet activist and blogger Cory Doctorow has pointed out, a number of different ACTA drafts have been leaked, and the text is clearly changing over time.
But with unrest growing, politicians have also begun to take an interest in ACTA. In Europe, MEPs began to jib at the lack of transparency at the beginning of last year. By November US Senators were asking questions too; and at the beginning of this year UK MPs began pushing for a cross-party motion to call for an end to the excessive secrecy surrounding ACTA.
Further raising the temperature of the debate, in February the EU Data Protection supervisor Peter Hustinx published a 20-page opinion expressing concern about the privacy implications of ACTA. The office of the trade commissioner Karel De Gucht was compelled to respond by pledging that ACTA would not force countries to disconnect people for unlawfully downloading copyrighted material.
"We are not supporting and will not accept that an eventual ACTA agreement creates an obligation to disconnect people from the internet because of illegal downloads," De Gucht's spokesman John Clancy assured ZDNet UK in February.
ACTA negotiators are clearly now under considerable pressure to rethink their approach. Evidence of that was apparent in the most recent leaked document, which reveals growing disagreement between the ACTA negotiating parties over some of the more controversial issues — including the proposals for anti-circumvention legislation and access controls. While the US wants a DCMA approach, many other countries, including the EU, Japan, and New Zealand do not — on the grounds that the WIPO Internet treaties (from which both the DMCA and the EC Copyright Directive emerged) do not require it.
But it is the issue of transparency that continues to attract the greatest criticism. To that end, four MEPS — Zuzana Roithova (Czech, EPP), Stavros Lambrinidis (Greek, Socialist), Alexander Alvaro (Germany, Liberal) and Françoise Castex (France, Socialist) — recently submitted a written declaration opposing ACTA. If the declaration gets sufficient signatures (starting tomorrow), it will challenge the European Union's rights to negotiate on the treaty. European citizens are being encouraged to write to the MEPs and ask for their support.
And last Friday Sweden announced that it had obtained an agreement among all members of the European Union to press for public disclosure of the ACTA text. "This now leaves the Obama White house as the only real obstacle to transparency", Knowledge Economy International's James Love commented on The Huffington Post site.
All in all, it seems, the whole ACTA process has become mired in confusion and controversy. The key question would seem to be whether ACTA will eventually prove to be the TRIPS-Plus agreement that some of the negotiating countries hope for (and critics fear), or whether it might prove a Waterloo for IP maximalists, the battleground on which the IP beast is finally tamed.
ACTA negotiators had hoped to complete the agreement by the end of 2010. As criticism continues to escalate that timetable seems increasingly unrealistic.
But what is ACTA really about? Why the secrecy? What are its implications?
Who better to answer these questions than Michael Geist, the indefatigable University of Ottawa law professor who, as The New York Times pointed out last month, "has been mustering critics of the negotiations via his blog?"
UPDATE: ON WEDNESDAY 10th MARCH, IN A NEAR UNANIMOUS VOTE, 633 EUROPEAN MEMBERS OF PARLIAMENT (MEPs) BACKED A RESOLUTION THAT SAID THE LACK OF TRANSPARENCY SURROUNDING THE ACTA NEGOTIATIONS IS UNACCEPTABLE. ONLY 13 MEPs OPPOSED THE RESOLUTION AND 16 ABSTAINED.
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