Leaked ACTA drafts continue to concern

IT and internet provisions are just subheadings

Material from drafts of the Anti-Counterfeiting Trade Agreement (ACTA) continue to leak out.

Whistle-blower site Wikileaks secured a copy of a 2008 draft of the proposed agreement. Some critics, such as local blogger Mark Harris, claim this is evidence the agreement is closer to completion than local official sources, such as the Ministry of Economic Development, represent it as being.

“I think it’s awfully interesting to note that all requests for information around the world have been met with, ‘there isn’t a draft text yet, so we can’t release anything. As soon as we have something, we’ll show you’. Yeah, right,” Harris says.

The draft text, originally on a dingy photocopy, but obligingly transcribed by Wikileaks contributors, is dated July 2008.

It contains a fair amount of detail, but the text was obviously still contested at that stage as the notes contain suggestions on wording from US, Japanese, European and Mexican delegations.

The section headed “Special Requirements Related to Information Technology and Internet Distribution” consists of subheadings.

However, there are hints of possible consequences for parties such as internet service providers seen as facilitating an alleged infringement.

“Each party shall provide that its judicial authorities shall have the authority at the request of the applicant [to] issue an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right,” says part of the draft.

This means an injunction may be served on suspicion that a transaction is an infringement of intellectual property rights, in advance of a hearing that would allow the alleged perpetrators to defend themselves. This is intended to prevent further damage to the right holder’s business before a full hearing can be convened.

“An interlocutory injunction may also be issued, under the same conditions, against an intermediary whose services are being used by a third party to infringe an IP right,” the draft says, potentially restricting ISPs for their alleged role in an unproven “infringement”.

Another draft clause provides for destruction or disposal “without compensation of any sort” of “materials and implements the predominant use of which has been in the manufacture or creation of infringing goods.”

The US lobby appears to have at that stage been suggesting a more loose wording, merely stipulating that the material should have been used for an infringing purpose, without the qualifying term “predominantly”.

The Ministry of Economic Development and other national parties to the negotiations released a sketch of the current shape of the draft agreement earlier this month. Critics such as Harris say this release revealed nothing new and reflects the “spin” that champions of the agreement want concerned people to accept at face value.

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