Internet Service Providers (ISPs) may be freed from being liable for their users' copyright infringements in the Anti-Counterfeiting Trade Agreement, according to what appears to be a leaked version of the agreement.
The ACTA aims to establish international standards on how to enforce intellectual property rights, and has involved countries around the world including Australia. Potential signatories to the agreement, including Australia, New Zealand, the United States and European nations, had previously released a draft text of the agreement in April following a spate of demands from privacy groups and European Union (EU) MPs to increase the level of transparency of ACTA discussions.
The controversial three-strikes rule, already rumoured to be dropped, would require ISPs to disconnect subscribers who repeatedly infringe copyright law, liberating copyright-holders from the need to pursue civil action.
"As was rumoured, the text does indeed appear to remove most, if not all, requirements for treaty countries to impose third party liability on ISPs and other third party providers," New Zealand intellectual property lawyer for Lowndes Jordan, Rick Shera said on his blog.
He said the agreement describes a "relatively benign set of provisions", but notes that detail about how subscriber information might be accessed has not yet been inked in the document.
Yet Pirate Party Australia party secretary Rodney Serkowski said that from first appearances the draft still seems to leave the door open for a "punitive system" which could encompass a three strikes provision.
"I don't think it stops [three-strikes]," he said.
He said that certain provisions within ACTA already align with Australian law and the US free trade agreement, and worried that the agreement is at risk of a parliamentary rubber-stamp.
"I hope that the Greens stay the course and that in their capacity they would challenge the impetus behind ACTA," Serkowski said.
The release of the draft text by Knowledge International follows bickering between delegates from the US and Europe over a push for its official release, and suggestions by Pirate Party Sweden member Christian Engstrom that the document would be leaked. The final text is expected to be completed during the next meeting in Japan, slated for this month.
The ACTA text also contains provisions that appear to limit a government's liability for copyright infringement.
"The Parties may limit the remedies available against a government's unauthorised use of intellectual property covered under this Agreement, or against such unauthorised use by a third party that was authorised by a government, to payment of remuneration. The right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorisation," the document reads.
A clause proposed by New Zealand suggests the agreement "limit or exclude criminal penalties for such unauthorised use of intellectual property rights".
Participating ACTA representatives will also ensure that judicial authorities can order infringers to pay damages "adequate to compensate for the injury" to copyright holders if they "knowingly or with reasonable grounds to know, engaged in infringing activity".
Adequate damage would consider, but not be limited to, "any legitimate measure of value submitted by the right holder", including lost profits, and the value of lost goods and services according to market or retail prices.
Alternatively, governments would also allow for pre-established or presumptions of damages.
Europe, Switzerland and Japan have backed further judicial powers allowing for a "provisional measure" that would prevent "imminent infringement" of intellectual property.
The Greens Party indicated that it will respond to the ACTA leak tomorrow.