We’ve been writing about the ACTA (Anti Counterfeiting Trade Agreement) treaty for a while. We believe that copyright law and enforcement will need to change but also believe that everyone should participate in creating new laws, not just big business and their proxies. As such, we strongly objected to the secrecy around the negotiations and called for New Zealand to withdraw. We also made a submission to the Ministry of Economic Development about the digital enforcement provisions section.

The secrecy around ACTA caused problems for critics because, while much of the contents had been leaked, it was difficult to analyse the draft treaty without solid information. This all changed after the last meeting in Wellington, where global public pressure forced them to release the current draft (pdf) of the treaty.

Now we have the text to look at, were our fears justified? In this article we concentrate on some of the ways that the draft ACTA treaty encroaches on our civil liberties.

Specific problems

Criminalisation – enforcement overkill

Criminalisation takes copyright infringement from civil law, where the aggrieved party can sue the offender in court for redress, to criminal law where the offender is arrested by the Police and can be punished by jail and fines.

ACTA requires (article 2.14):

• criminalisation of copyright infringement on a “commercial scale” or “for financial gain”.
• criminalisation of the act of recording a movie in a theatre.

This doesn’t sound bad until you realise that “for financial gain” would include someone copying a DVD (because they now don’t have to pay for one) and “commercial scale” could include using peer-to-peer file sharing where many people might download part of a file from one person. The similar Australian law explicitly provides an exclusion for people’s domestic usage – but this exclusion is not in ACTA.

Any justice system must ensure that it is both equitable and fair. Does it seem reasonable to arrest someone for, as an example, infringing copyright by copying the movie from a DVD they bought to a portable video player?

We believe that criminal enforcement should be reserved for large scale businesses that are attempting to profit from their infringement, rather than chasing individuals for their private acts. It shouldn’t be used to intimidate individuals and force the government to pay for IP enforcement. At a minimum, ACTA should better define “commercial scale” and “for financial gain” to exclude personal acts aimed at domestic use.

Statutory damages – monetising justice

Statutory damages are where the law specifies the amount of damages to be paid to the plaintiff rather than letting a judge or jury make a determination based on the circumstances of the case.

ACTA currently has versions with both statutory and non-statutory damages (article 2.2). Which one will make it into the final version of the treaty is the subject of negotiation.

We oppose statutory damages in these types of cases and believe it distorts the justice system:

• It leads to situations where penalties are manifestly unfair compared to the damage done to the plaintiff.
• By guaranteeing a minimum return it provides an incentive for companies and lawyers to bring cases to court based on their money making potential.
• It lends itself to legal extortion, where rights holders threaten large numbers of people with legal action and then allow them to settle each case for a few thousand dollars rather than risk paying outlandish damages in court.

Justice must be fair and proportionate or it becomes injustice. We recommend that all damages should have to be based on actual losses and should be at the discretion of the courts.

Secondary liability – blaming the innocent

Secondary liability is the idea that people who provide tools or means that other people use to break the law should also be held liable.

ACTA stipulates that internet service providers (ISPs) should be liable if their users download pirated material (article 2.18.3). However, it does provide a limited set of protections for ISPs (a ‘safe harbour’) if they implement certain procedures, the nature of which are not clearly defined and still still appear to be the subject of negotiation.

We reject the idea of punishing the innocent for the sins of others and therefore reject the idea of secondary liability for ISPs. They should not be held liable for people using their services to infringe copyright, in the same way that the power company is not held liable.

Giving up customer information – lack of due process and privacy

ACTA includes the following as an option (article 2.18.3):

Each Party shall enable right holders, who have given effective notification to an online service provider of materials that they claim with valid reasons to be infringing their copyright or related rights, to expeditiously obtain from that provider information on the identity of the relevant subscriber.

In other words, if the rights holders accuse someone of pirating something the ISP must give them the name of the account holder. We believe that this is a gross invasion of privacy and is an inappropriate grant of investigative powers to commercial groups.

We believe people have a right to a reasonable expectation of privacy. Personally identifying information should only be released at the order of a court after an appropriate process is followed.

Technological protection measures – taking away rights to use property

TPMs (technological protection measures) are digital locks used to prevent people using products they’ve bought in ways that the rights holder doesn’t want them too. For example, the region coding on DVDs means that if you buy a DVD in one region you can’t play it on a DVD player in another region.

ACTA, in article 2.18.4, prohibits the removal of technological protection measures as well as the distribution of products that are designed to do this. It explicitly says that this shall be a separate offence, irrespective of whether someone is doing this to infringe copyright or not.

We believe that TPMs infringe the rights of people to use the products they have paid for. TPMs aren’t just used to prevent copyright infringement, they also stop blind people using screen readers, can prevent people from printing a page from ebooks, and stop people playing DVDs on a laptop they bought in another country. In each case, people have had to circumvent the technological protection measures to be able to use the product they paid for.

Circumventing TPMs for lawful and reasonable purposes should be entirely legal.

Conclusion

ACTA is an attempt by the content industries to change international law to suit their economic requirements. The content industries are not interested in civil liberties – the right to due process, the right to a proportionate and fair justice system, the right to privacy, the right to use the products you buy.

We believe that any changes to IP laws and enforcement of those laws must take into account the needs of all of the interested parties. This means that the laws should be fair to those who are the customers of the content industries and must not take away our rights.

Civil liberties must not be sacrificed to protect the profits of the content industries.

Credits: We’re indebted to Kim Weatherall for her in-depth analysis of the released ACTA text.