With the leak of the full text of ACTA, complete with every nuance of positions by the various countries involved, we have the first full and complete picture of what our government is up to.
Here’s five things we learnt from reading the treaty.
USA wants internet-account termination
The full text confirms that the US would accept safe harbours for ISPs only if they implement termination policies under ‘reasonable circumstances’. i.e. you’re safe from prosecution if you cut off anyone who we accuse of infringing copyright. This is similar to the provisions of section 92A of the Copyright Act that were defeated in NZ last year.
It would also require ISPs to remove or disable access to content on demand. This is the US’s attempt to get other countries to adopt the provisions of their DMCA (Digital Millennium Copyright Act). Oddly, this provision has an exclusion for any provider acting soley as as a conduit, which appears inconsistent with the demand for account termination.
New Zealand is noted as being opposed to internet account termination.
Japan is unconvinced by the need for anti-TPM laws
More than a page of the text goes into Japan’s views about laws prohibiting devices that stop people breaking copy protection mechanisms (TPMs). New Zealand already has such a law although we make an exception that allows us to avoid region coding as used on DVDs. Japan puts this pretty strongly:
Japan would like to know from the US or other countries which adopt a restriction on circumvention of access control, the concrete example and data and background of the legislation. That is, amount of harm by circumvention of access control, how effective the legal remedy against the circumvention of access control was (e.g. shrinkage of harm, number of litigation cases, what kind of major actions were ceased in terms of copyright protection perspective).
We’d be interested to hear what those arguments were too.
The treaty attempts to establish a global standard for awarding costs
A whole section is devoted to finding a universal solution to how the costs of legal action involving infringing goods is awarded. There is a vast array of different variants presented in the text as each country argues for its own version. It seems bizarre for a trade agreement to be dabbling in basic elements of a country’s legal system.
NZ does not require evidence to justify seizing infringing goods
The treaty has New Zealand more than willing to allow a rights-holder to demand the seizure of goods they think may infringe, without having to provide any evidence. There is also no penalty for making false accusations.
Nobody can agree on the scope
This isn’t a new thing but it’s worth mentioning again. The text shows an ongoing battle between those who want to limit the the treaty to copyright and related trademarks, and those who want it to cover any intellectual property.