ACTA update: A question of sovereignty, says law professor

'It's bad. Very bad,' says blogger Cory Doctorow. InternetNZ expresses concern

A leaked chapter of the international Anti-Counterfeiting Trade Agreement (ACTA) could "eliminate sovereign choice on domestic copyright policy", Canadian internet law specialist Michael Geist says.

Computerworld reported the leak and apparent contradictions between the new text and statements last year from New Zealand MED negotiator George Wardle. Last year, Wardle told Computerworld the treaty was aimed at piracy on a commercial scale.

"On the international front, it provides firm confirmation that the treaty is not a counterfeiting trade, but a copyright treaty," writes Geist.  "These provisions involve copyright policy as no reasonable definition of counterfeiting would include these kinds of provisions."

He goes on:

"If Canada agrees to these ACTA terms, flexibility in WIPO implementation (as envisioned by the treaty) would be lost and Canada would be forced to implement a host of new reforms (this is precisely what US lobbyists have said they would like to see happen).  In other words, the very notion of a made-in-Canada approach to copyright would be gone," Geist says.

"It's bad. Very bad," says Boingboing blogger and internet freedom activist Cory Doctorow.

Doctorow says the text would require:

1. That ISPs have to proactively police copyright on user-contributed material. This means that it will be impossible to run a service like Flickr or YouTube or Blogger, since hiring enough lawyers to ensure that the mountain of material uploaded every second isn't infringing will exceed any hope of profitability.

2. That ISPs have to cut off the internet access of accused copyright infringers or face liability. This means that your entire family could be denied to the internet — and hence to civic participation, health information, education, communications, and their means of earning a living — if one member is accused of copyright infringement, without access to a trial or counsel.

3. That the whole world must adopt US-style "notice-and-takedown" rules that require ISPs to remove any material that is accused — again, without evidence or trial — of infringing copyright. This has proved a disaster in the US and other countries, where it provides an easy means of censoring material, just by accusing it of infringing copyright.

4. Mandatory prohibitions on breaking DRM, even if doing so for a lawful purpose (e.g., to make a work available to disabled people; for archival preservation; because you own the copyrighted work that is locked up with DRM)

InternetNZ, meanwhile, has bought into the debate, saying it is concerned by media stories indicating a change in direction in the latest round of treaty negotiations.

The negotiating round is being held today.

"If correct, this is cause for alarm and shows a significant change in ACTA's focus,” says InternetNZ spokesperson Jordan Carter.

"Instead of focusing on customs procedures and stopping large scale commercial piracy, it seems the negotiations are turning to areas that should be out of bounds.

"Because the ACTA process is secret, none of us can know the precise details of what is being discussed.

"New Zealand should take a stand against any attempt to hijack the negotiations."

Carter says big music and movie interests, and other content producers, are conducting a global campaign to put their interests ahead of citizens' rights to use the internet and to not be subject to unreasonable and arbitrary penalties that do nothing for the public interest.

“The New Zealand negotiators need to argue for ACTA to focus on the big economic problems caused by commercial piracy. The government should clarify this stance and should put more information about what exactly is under discussion into the public domain - and the sooner the better," he says.

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Tags Cory DoctorowACTAinternetnzmichael geist

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