ACTA copyright negotiations underway still secret, still worrying

[ Reposted from EFA blog ]

The new round of Anti-Counterfeiting Trade Agreement (ACTA) negotiations has started in Seoul. This round sees the introduction of the long-anticipated internet enforcement measures, which the US has drafted in secret. Michael Geist reports that the draft text is modeled on the US – South Korea free trade agreement, and focuses on five issues:

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

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

* 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 [to] 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.

* 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.

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

So, there's a lot of material here, and it becomes abundantly clear that the ACTA is not focused on counterfeit goods, but on copyright. Its greath strength will be in further entrenching the WIPO+ treatries in the same way that the recent US-driven bilateral trade agreements have done. Geist points out the crux of this issue: national states lose the sovereignty to determine appropriate copyright laws for themselves, losing even the relatively minor flexibility available under the WIPO agreements.

How this treaty would impact on Australian law is not clear at this stage. Australia's agreement to the AUSFTA already binds us in to a significantly higher standard of protection than that required by the international conventions. Much will depend on the actual text of the treaty and the way in which Australia determines to implement it, if we end up signing. Australia already complies with TRIPS, already restricts the safe harbour for ISPs, already implements a notice and takedown procedure, and technically has a requirement to terminate 'repeat infringers'. Australian anti-circumvention law already prohibits actual circumvention and the distribution of circumvention devices, and has very limited exceptions to liability.

The Department of Foreign Affairs and Trade (DFAT) has maintained for a while that they do not expect to see major domestic changes to Australian law as a result of the ACTA. Since Australia already assumed quite onerous copyright measures as a result of the AUSFTA, the ACTA is more likely to be used to lock other states in to the US-driven copyright agenda. DFAT has also said that they are participating in the ACTA to 'be in the tent', and have not yet determined to sign the ACTA; politically, though, it may be quite difficult for Australia to avoid signing a treaty that we have been actively negotiating.

As always, the devil will be in the details. DFAT may be correct in saying that the ACTA will reflect no major changes to Australian law. If this is the case, there is still a very real concern that we are limiting democratic processes and national sovereignty by setting minimum copyright standards through secret trade negotiations driven by particular interest groups. This is rarely a way to make good laws, and will almost certainly result in laws that do not reflect the needs of different nations.

If the text of the agreement does require Australia to change its copyright laws, however, there are some serious concerns. It's still not clear whether statutory damages are on the agenda; Australia does not have statutory damages, but the US does, and there has been a push in recent years to export this particularly onerous and inequitable policy to other states.

Proposed changes to the safe harbours are also quite worrying. Gwen Hinze from the EFF is extremely concerned about the potential for the ACTA to introduce graduated response requirements. The US – South Korea FTA requires states to provide “legal incentives for service providers to cooperate with copyright owners […] in deterring the unauthorized storage and transmission of copyrighted materials”. This could just mean the introduction of a notice and takedown scheme, which Australia already has, or it could be more sinister. Australian law is in a state of flux at the moment – we do establish third-party liability for copyright infringement, and we do have safe harbours, but we also have a huge uncertainty, as demonstrated by the AFACT v iiNet case, as to whether or not ISPs (a) are liable for the infringing acts of their users; and (b) are obligated to terminate their subscribers in response to repeated allegations of copyright infringement. We're all watching this case progress; no doubt copyright owners will push for increased ISP liability if the safe harbours to prove effective in immunising iiNet from liability.

A graduated response, or three-strikes regime, if implemented, risks greatly threatening the access of individuals to the internet, essentially holding internet access to the ransom of copyright owners. The dangers that such a scheme poses to due-process are enormous; requiring ISPs to investigate, enforce, and punish copyright infringements is anathema to our system of accountability and judicial authority.

It's not clear whether a three-strikes regime is on the table, or what domestic changes we are likely to see. As Kim Weatherall points out, the secrecy makes it impossible to know what to trust, and means that we tend to fear the worst.

There is a real danger here that Australia may abdicate its ability and responsibility to determine appropriate domestic copyright laws. If the text of the ACTA requires changes to our law, we risk being once again locked into the US-driven copyright agenda, without either public discussion and debate or proven benefit to Australia. The level of secrecy in these negotiations, for measures that could potentially drastically alter our copyright balance, is completely unacceptable. There is no rational reason that such negotiations need to be kept secret – copyright laws are assumed to be enacted to achieve a balance for the benefit of society; it is only if they do not achieve this balance that their details would need to be kept from the public.

Kim Weatherall sums up the dangers of Australia signing the ACTA even if it does not drive domestic changes:

From an Australian perspective, I suspect that the temptation for negotiators will be to say that since we are already committed to such rules in the AUSFTA, there is ‘no harm’ in signing up to similar ACTA terms. I think that would be a serious mistake. When Australia signed to such terms in AUSFTA, it did so in a trade deal, where there were other ‘benefits’ (however illusory some might have been). And it retains the freedom to step away from the AUSFTA at some future point if the costs outweigh the benefits. Signing up to such terms in an ACTA would be agreeing that these are to be general international standards: removing any remaining flexibility we have and giving a whole new set of people the right to complain if we want to resile.

We will keep you updated on developments. Hopefully more detail emerges over the next few days.