ACTA provisions further weakened as 'finish line' nears

Latest version is less harsh on copyright breaches

The US Trade Representative’s office has issued an official version of the latest text of the ACTA treaty (Anti-Counterfeiting Trade Agreement). Commentators who have been apprehensive particularly about the force of the chapter on copyright breach by internet downloading are pleased that these provisions have been watered down in comparison with original US proposals. However, they caution the agreement is not finalised yet.

Parties to the agreement “shall promote cooperative efforts within the business community to effectively address copyright or related rights infringement,” the latest draft says, “while preserving legitimate competition and consistent with each party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.”

The contentious clauses requiring ISPs to police infringement and to disclose the identity of repeat infringers to the copyright holder have been reduced to something individual countries “may” (not “must” or “shall”) do.

The current text of New Zealand’s Copyright (Infringing File Sharing) Bill provides for such disclosure only at a late stage of a complex process of information flows among copyright owner, alleged infringer and ISP.

All trace of the feared “three strikes” provision and internet account termination has vanished from the ACTA text, though termination remains as a last-resort provision for repeat offenders in the NZ Bill.

Much of the ACTA language has not significantly changed following the latest meeting, in Tokyo earlier this month. One part that has, in the direction of greater liberalism, is that dealing with restrictions to circumvention of digital rights management technology. “Each party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures…” says the latest text, but Canadian lawyer and avid ACTA-follower Michael Geist points out the definition of “adequate legal protection and effective legal remedies” leaves considerable room for flexibility. “The language is such that you can picture the U.S. delegation slowly caving on its demands in order to achieve consensus,” Geist says.

Provisions dealing with measures at the border have been the subject of concern, with some fearing routine Customs inspection of passengers’ laptops and MP3 players. The latest text emphasises that “parties may exclude from the application of this section small quantities of goods of a non-commercial nature contained in travellers’ personal luggage”, but this clause is only a “may” not a more reassuring “shall”. Parties are still required to provide for inspection of “goods of commercial nature sent in small consignments.”

US Trade Representative Ron Kirk says ACTA negotiators are “almost across the finish line”. The major remaining point of contention is whether application of the agreement will be restricted to copyright and trademark questions or cover a broader range of intellectual property protection such as patents and “geographical indications” like “champagne”.

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