I have been doing diaries about the Anti Counterfeiting Trade Agreement here on Daily Kos for awhile. What I have been pointing out is ACTA is being negotiated by the US Trade Representative (an office in the White House) in secret from the public. But several leaks about ACTA shows just how hard secrecy is in the age of the Internet.
In February, there was a leak, apparently from the EU, that showed that the USTR has lied to the US public about provisions of ACTA & the US position:
Article 11 of the WIPO Copyright Treaty (the anti-circumvention provision) was intentionally left broad in scope to allow for various implementations. The treaty merely requires "adequate legal protection and effective legal remedies against the circumvention of effective technological measures." It does not require access controls nor prohibitions on the manufacture or distribution of devices that can be used to circumvent. Indeed, when the DMCA was being discussed in the United States, Bruce Lehman, the Under-Secretary of State, acknowledged that the treaties could be implemented without a devices provision. Moreover, he stated that the DMCA would be used to pressure other countries into following the U.S. example:
When that legislation is in effect, then we will have a template that we can use, that the Trade Representative can use, that we in the Commerce Department can use, the State Department can use, when we are in negotiations with other governments to advise them as to what they need to do to implement their responsibilities in these treaties to provide effective remedies.
ACTA is therefore viewed as a mechanism to win the policy battle lost in Geneva in 1996. It would force countries like Canada to adopt the U.S. approach, even though the treaty explicitly envisioned other possibilities.
The draft chapter finally puts to rest the question of whether ACTA in its current form would establish a three strikes and you're out model. The USTR has recently emphatically stated that it does not establish a mandatory three strikes system. The draft reveals that this is correct, but the crucial word is mandatory. The draft U.S. chapter does require intermediaries to play a more aggressive role in policing their networks and the specific model cited is the three-strikes approach. In other words, the treaty may not specifically require three-strikes, but it clearly encourages it as the model to qualify as a safe harbour from liability. The specific provision, which is another pre-requisite for intermediary safe harbour from liability, states:
an online service provider adopting and reasonably implementing a policy to address the unauthorized storage or transmission of materials protected by copyright or related rights except that no Party may condition the limitations in subparagraph (a) on the online service provider's monitoring its services or affirmatively seeking facts indicating that infringing activity is occurring;
And what is an example of a policy provided in ACTA? The treaty states:
An example of such a policy is providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat infringers.
This leak shows how deceptive the USTR has been on this issue - on the one hand seeking to assure the public that there is no three-strikes and on the other specifically citing three strikes as its proposed policy model. Given the past U.S. history with anti-circumvention - which started with general language and now graduates to very specific requirements - there is little doubt that the same dynamic is at play with respect to three strikes.
From a process perspective, leaks coming out of the Mexico ACTA talks revealed that the ISP provisions were discussed, but the anti-circumvention provisions were not. This suggests that the anti-circumvention provisions from the U.S. are the only proposal currently on the table. According to a New Zealand official, there may be alternate proposals for the three-strikes model, all of which will presumably be discussed during the next round of negotiations in April in New Zealand.
Now another leak has hit the Internet. This time, each country's position is posted:
Internet Enforcement Chapter
* Canada has expressed concern with the title of the chapter ("Special Measures Related to Technological Enforcement Means and the Internet") and the substance of the chapter
* On the ISP safe harbour chapter, the leak identifies three proposals (consistent with an earlier NZ comment). In addition to the U.S. proposal that was leaked earlier, there is a Japanese proposal and one from the EU. Moreover, many countries have raised specific issues about the U.S. language. For example, New Zealand notes that the safe harbour appears to cover Information Location Tool providers (ie. search engines), but that it wonders why there is a concern of liability to begin with.
* Japan's alternative proposal calls for ISP liability based on knowledge of infringement. It states that there may be liability if it is technically possible to prevent the infringement and the provider "knows or there is reasonable ground to know" that infringement is occurring. There are additional provisions on the inclusion of a notice system and industry cooperation.
* With respect to the requirement of an ISP policy that could include three strikes as a pre-requisite for qualifying for the safe harbour, New Zealand is opposed to the condition altogether. Meanwhile, Japan notes that its law does not contain a policy requirement and it would have to consider whether it can agree to that requirement.
* On the implementation of notice-and-takedown, Canada has noted that the relationship between third party liability and ISP limitation of liability is unclear.
* On the anti-circumvention rules, which involves a U.S. attempt to implement a global DMCA, the EU would like to exclude access controls from the ambit of the provision. They are not alone - New Zealand opposes their inclusion and Japan also takes the position that access controls are not required by the WIPO Internet treaties and is apparently concerned about the implications for its domestic law. There is no reference to a Canadian position, despite the fact that this goes beyond current Canadian law.
Civil Enforcement Chapter
* the U.S., Japan, and the European Union want the civil enforcement powers to extend to any intellectual property right. Canada, Singapore, and New Zealand seek a more limited treaty that covers only copyright and trademarks.
* the EU is seeking injunctive relief powers against intermediaries whose services are used by a third party to infringe an IP right. The EU is alone in focusing on intermediary injunctions.
* on statutory damages, the EU seeks to limit damages to actual damages, while the U.S. is proposing statutory damages. There is also dispute on the scope of the IP rights (all vs. just copyright and trademark). Canada and NZ also want to limit or exclude damages in certain special cass.
* on the disclosure of information related to investigations, the U.S. is pushing for very broad language, while the E.U. wants to limit with specific kinds of information (and Canada has proposed further limiting language).
Well, it looks like from now on, I can't refer to ACTA as the secret treaty. I applaud whoever posted this to the Internet. Will the treaty still be implemented? Will the public get to voice their opinions on what should be in ACTA? Will Congress?