The ACTA treaty negotiation process is still going strong. The participants apparently feel pressured to finalise the agreement before the end of the year and have agreed to an extra negotiating round in Washington next week to help hurry things up.

The most recent leaked text shows that progress is being made on the details while some major disagreements (mainly around the scope of the agreement – should an anti-counterfeiting agreement also include patents and geographic indications) are yet to be resolved.

In our last summary article about ACTA we raised five issues where we thought that the treaty was a threat to justice and civil liberties.

Here we revisit them and find significant improvement in three of those issues and minor improvements in the other two.

1. 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.

The last version of ACTA required the parties (i.e. the signatory countries) to criminalise:

• infringement “on a commercial scale” or “for financial gain”
• recording a movie in a movie theater

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.

Changes in latest draft

The latest draft of 2.14 (page 15 of the leaked draft) has added text that makes some attempt to define what “commercial scale” and “financial gain” mean, making it much more in line with what a reasonable person would expect from those terms. More importantly, the EU and US have proposed additional text that would explicitly exclude end consumers from being criminalised by this clause.

The curious obsession with people recording movies at the theatre still remains, although the European Union, Japan and Singapore wish to remove or significantly weaken this clause.

We believe that these changes, assuming they survive the drafting process, are a significant improvement and largely remove our objection to this aspect of ACTA.

2. 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.

We oppose statutory damages as they (a) are deliberately inflexible, (b) tend to be set too high, and therefore (c) encourage extortion by legal threats.

The original draft (article 2.2) had multiple competing proposals, some of which included statutory damages.

Changes in latest draft

The latest draft of article 2.2 (pages 6-7) includes the standard damages (compensation for injury to the rights holders and taking the profits of the infringer) but leaves the question of additional damages up to each country to decide.

New Zealand could choose to implement option C, “at least for copyright, additional damages”, which matches current NZ law where the judge can decide, on the facts of the case, to add punitive damages.

This is a significant improvement and removes our objection to this part of the ACTA treaty.

3. Third party liability – blaming the innocent

Third party 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.

Changes in latest draft

There are a number of changes to section 2.18 (pages 18-24) and, judging by the number of footnotes and bracketed options, there is still a lot of negotiation to go.

• There is still considerable disagreement around scope – whether third party liability should be only for copyright or also for patents, designs and trademarks.
• We are pleased to note that ACTA does seeem to have dropped the idea of graduated response (i.e. “three strikes and you’re out”) although this doesn’t stop individual countries implementing such a scheme.
• There is also language that implies that people accused of infringing copyright can challenge the accusations before material is taken down (2.18.3(c)(i)).

In general it looks as though ACTA is moving in the right direction on some of these issues, with the treaty making more room for the individual countries to choose their own legislative responses within a very broad framework.

However there is still considerable cause for concern, not least that we disagree with the overall concept of blaming ISPs for the actions of their users.

4. Giving up customer information – lack of due process and privacy

The earlier draft obliges online service providers to hand over personal details of anyone accused of infringing copyright to the person making the accusation. We believe that this is a gross invasion of privacy and is an inappropriate grant of investigative powers to commercial groups.

Changes in latest draft

Section 2.18.3 (page 21) does not include the strong language of the earlier drafts.

There is a general clause that says that the parties will “encourage the development of mutually supportive relationships between online service providers and rights holders”, which seems basically meaningless.

There is also a Japanese proposal to include provisions for forcing online service providers to give up details of subscribers but this power can only be exercised by the courts.

We are pleased to see that the original clause is gone from the ACTA treaty. We also have no objection to the Japanese proposal that service providers can be ordered by the courts to reveal subscriber information (assuming that there are appropriate safeguards).

5. Technological protection measures (TPMs) – 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.

The earlier draft prohibited 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.

Changes in latest draft

The relevant section 2.18.3 (page 21) is heavily adorned with footnotes and bracketed options. However, the general thrust of the clauses still shows that ACTA still intends to prohibit people from accessing the material they have purchased the rights to in the way that they prefer.

We oppose this and hope that the New Zealand proposal to exclude anything that controls access to a protected work for non-infringing purposes (e.g. you wish to watch your legally purchased DVD on non-authorised equipment) is included in the final text.

Conclusion

When looked at through Tech Liberty’s civil liberties lense, the ACTA agreement is steadily improving. Of the five areas we highlighted in our last article, three of them have been substantially improved and some progress has been made on the other two.

However this should not be taken to mean that we believe ACTA is benign. We reject third party liability as being unjust and think that consumers should have the right to break technological protection measures (TPMs) in order to exercise the rights they paid good money for.

The lack of transparency around the negotiations continues to worry us. Luckily it seems to worry some of the participants too, judging by how quickly draft versions are being leaked. However, as citizens in a democracy we shouldn’t have to rely on leaks to find out what our government is doing on our behalf.

Moving away from civil liberties, there are also major concerns about the inclusion of patents in what claims to be an anti-counterfeiting agreement and what this might mean for the availability of life-saving generic medicines.

Finally, we note that while ACTA is improving, we expect many of the same issues to reappear in the negotiations for the Trans Pacific Partnership. It seems that the rights-holders are prepared to keep banging away until they get the laws they want, therefore we will do our best to keep defending our rights.