Jonathon Penney, a senior research fellow in cyberlaw at InternetNZ, was remarkably prescient when speaking at the Copyright Future conference in Wellington recently.
Just days before details of the internet provisions of the secret international Anti-Counterfeiting Trade Agreement (ACTA) were leaked, Penney told the conference, organised by the New Zealand Centre of International Economic Law, that copyright should be viewed “through the lens” of the ACTA and not be seen as an isolated national issue.
ACTA and national governments’ attitudes to internet piracy are inextricably linked, Penney said.
“I don’t think it’s any secret what you’re going to find in ACTA once we get a full draft of it,” he said. “There are going to be provisions for damages [which are not catered for significantly under the current TRIPS international agreement]; there will be provisions for injunctions; and there will be provisions to deal with repeat infringement of copyright.
“There, I think, internet account termination is definitely on the table.”
How right he proved to be.
The leaked ACTA draft contained a raft of provisions that could potentially run counter to domestic laws in the countries involved in the nogitations, including disconnection of infringers and ISP liability for hosting copyright material.
Further, Penney pointed out that French authorities, after defending internet access as a basic human right, and the UK government, after saying it did not see disconnection as an appropriate sanction, have now both backed down.
The French have passed a law authorising account termination after three offences and British business secretary Lord Mandelson has authorised the drawing up of similar regulations.
“This is unusual, because account termination is very unpopular in the UK right now,” says Penney. “Secondly, it wasn’t part of the government’s original plan.”
The moves are explicable, he believes, as a show of willingness to harmonise regulations on intellectual property internationally, with a view to establishing a more powerful negotiating position on ACTA and the broader issues of world trade.
Michael Geist, a law professor at the university of Ottawa, broke news of the new ACTA document on his blog. Commenting to Computerworld US, he said the name of the agreement is misleading.
“First up, none of the best known countries for counterfeiting are parties to the talks,” he said, referring to China and Russia. “At the moment it’s just a coalition of the willing — other countries will be pressured to sign up later once the agreement has gained the respectability of an international treaty,” he said.
“Anyway, it’s not really about counterfeiting, it’s more about copyright and so should be called a copyright treaty,” Geist said.
Geoff McLay, a reader in law at Victoria University, suggested the original version of the Copyright Act’s contentious Section 92A, which only offered a provision for penalties against repeat downloaders of copyright material as a “safe harbour” option for ISPs, may have been a better course than the version currently on the table, which requires them to have such a provision.
The original version of the clause said an ISP could escape blame for customer infringements by having a penalty procedure, including termination of the accounts of repeat offenders.
However, ISPs and others filing submissions on the legislation objected to being seen as an arm of law-enforcement, so they “were relieved of that burden, only to have another imposed”.
That, in McLay’s view has turned out to be worse — a requirement to have a policy for disconnection.
What we now have, he says, is “a deluxe solution” with a suggested procedure of complex warning notices, official requests to the ISP to identify the offender and the involvement of the Copyright Tribunal at the last stage.
“We’ve gone from something you ought to do to gain a privilege to something you must do. I suggest it would have been wiser to stick with the original version,” McLay says.