ACTA: the ‘final’ version

The 11th round of the ACTA Treaty negotiations have finished and it seems that there won’t be any more rounds. Exactly what this means when the treaty text hasn’t been finalised is uncertain.

The current treaty text has been officially released.

The Tech Liberty view

We’ve had a lot to say about the ACTA treaty over the past year. In its earlier form there was a lot to complain about – it was much more than an anti-counterfeiting treaty in the way it tried to impose draconian pro-copyright and pro-patent laws.

In our article, ACTA – Bad for Civil Liberties, we noted five particular points that worried us:

  1. Excess criminalisation where infringement is taken from civil law to criminal law.
  2. Statutory damages 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.
  3. Third party liability where people (such as ISPs) who provide tools or means that other people use to break the law are held liable.
  4. Forcing ISPs to breach privacy by giving up customer information on demand.
  5. TPMs (technological protection measures) where digital locks are used to prevent people using products they’ve bought in ways that the rights holder doesn’t want them too.

In our last update, we noted that our objections to points 1, 2 and 4 had largely been removed, while progress had also been made on points 3 and 5.

Further changes

Since then, the section about third-party liability (i.e. blaming ISPs) has been dropped in favour of some rather wishy-washy statements about encouraging people to work together to stop infringement within the laws of the respective countries.

The section on TPMs still remains but adds “to the extent provided by its law” which seems to mean that each country will be able to set its own rules. This means that New Zealand can keep its current law that allows people to circumvent TPMs for non-infringing purposes.

In other words – the five issues that we chose to focus on have all been steadily neutered over the course of the negotiations. While we still don’t believe ACTA is benign, or necessary, many of the worst aspects have been removed.

Some other views

Michael Geist:

One of the biggest stories over the three year negotiation of ACTA has been the willingness of the U.S. to cave on the Internet provisions. When it first proposed the chapter, the U.S. was seeking new intermediary liability requirements with three strikes and you’re out used as an example of an appropriate policy as well as language that attempted to create a global DMCA.

Public Knowledge:

The final text of the Anti-Counterfeiting Trade Agreement (ACTA) should be seen as a qualified victory for those who want to protect the digital rights of consumers around the world. … The agreement would give more flexibility to the signatories than did previous versions.

However, the way this agreement was produced is still deeply flawed. The inclusiveness was not arrived at easily, nor was it ever complete.

As we have said before, this is not a trade agreement in the traditional sense of past trade agreements. In all but name, it is a treaty to govern the treatment of intellectual property. As such, it should have been negotiated in the open at a forum such as the World Intellectual Property Organization (WIPO), subject to a full Congressional debate and Senate ratification.

La Quadrature du Net:

In spite of all the assurances given by the negotiators, the dogmatic approach to copyright embodied by ACTA remains a major threat on the fundamental freedoms of Internet users. New wording now seeks to extend the scope of the “digital chapter” to criminalize “unlawful uses of means of widespread distribution”.

The release of this near-final version of ACTA does not satisfy the transparency requirement of democracy, since citizens and their elected representatives are put before a ‘fait accompli’. If this agreement were to be implemented, the rights and freedoms of citizens across the world as well as democratic processes would be severely undermined. Ratification of ACTA must be opposed by all means.

Rick Shera (@lawgeeknz):

Article 2.18(5) combined with footnote 14 at the bottom of that page would make illegal the breaking of a TPM to avoid geographic zone controls, even where there is no copyright infringement per se. This is directly contrary to the change made in NZ in 2006 to add section 226(b) to the Copyright Act. The question I’ll be asking of our officials is whether the “without prejudice” language at the start of that sentence in footnote 14, means that NZ does not have to enforce access control because section 226(b) would be “prejudiced” if it did.


From a European perspective, the US has proved unable to export the DMCA. However, maybe it didn’t need to do that. Hollywood lobbyists, joined by the international music industry, have been hard at work for a long time, pushing for alternatives that are a better fit with European requirements. Namely graduated response.

When we consider ACTA under EU law, there is no doubt that one must conclude it refers to graduated response / 3-strikes measures. There are variations on the implementation of graduated response, and I do not think it is possible to specify such measures in an international treaty, because each individual nation will have its own legal system and a slightly different requirement for implementation.