Acta copyright treaty draft gets first public airing

The international treaty, which calls for the criminalisation of DRM circumvention and other copyright-related violations, has been published in draft form
Written by David Meyer, Contributor

A draft copy of the Anti-Counterfeiting Trade Agreement has been officially released for the first time, confirming leaks that outlined the treaty's provisions to counter file-sharing and circumvention of digital rights management.

Before Wednesday's release, the working text for Anti-Counterfeiting Trade Agreement (Acta) — an international treaty intended to harmonise copyright enforcement laws around the world — was only ever seen by the public through unofficial leaks. The publication of the draft version followed intense pressure on negotiators from members of the European Parliament, digital rights groups and ISPs.

The public release was approved by all participants at the most recent round of negotiations, held in Wellington, New Zealand. The participants in the Wellington round included Australia, Canada, the European Union (represented by the European Commission), the EU Presidency (Spain) and EU Member States, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the USA.

"I am very glad that the EU convinced its partners to release the negotiation text," EU trade commissioner Karel De Gucht said in a statement. "The text makes clear what Acta is really about: it will provide our industry and creators with better protection in overseas markets, which is essential for business to thrive. It will not have a negative impact on European citizens."

The official draft is full of square brackets, which show amendments or alternative options presented by various participants in the negotiations. There is no indication which participant is behind which proposed amendment, but such identification is frequently possible by matching up the new text with the most recent leak.

Notably, the US appears to have withdrawn its proposal for giving ISPs limited liability for their users' copyright infringement as long as they agree to cut off repeat infringers. This leaves the only reference to account terminations as coming from the EU, which wants such moves left to the legal systems in individual countries.

Acta calls for the criminalisation of digital rights management (DRM) circumvention.

According to the draft copy, there should be "civil remedies or criminal penalties in appropriate cases of willful conduct" for "the manufacture, importation or circulation of a [technology], service, device, product, [component, or part thereof, that is: [marketed] or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than circumventing an effective technological measure]."

Digital rights groups welcomed the official publication of the Acta draft with a degree of caution. La Quadrature du Net, the French group that published the leaked version of the pre-Wellington draft, said in a statement that the release "does not legitimise the content of Acta, as transparency is no excuse for political laundering and the circumvention of democratic processes".

"This release of the text shows how effective the massive mobilisation of citizens around the world can be," La Quad chief Jérémie Zimmermann said. "All the leaks have shown that Acta could dangerously hinder freedom of expression, access to medicines and innovation in the global knowledge society. This official release suggests that it is still the case."

Florian Leppla, a campaigner for the UK's Open Rights Group, said in another statement that the release was "a great victory for campaigners who have long asked for the document to be released".

"However, we still don't know the positions of individual countries. So we won't know who is pushing for the most dangerous enforcement policies," Leppla said. "What we need now is an open process that allows consumer and citizens groups to influence what is in the document."

The bodies in negotation over Acta have said they intend to reach a final version by the end of this year.

To do this, "there will still need to be considerable compromise", suggested Canadian law expert Michael Geist in a Wednesday blog post. "Moreover, the continuing position of the US and EU that they will not change their domestic laws will have to change since there are too many inconsistencies for both to be right," he wrote.

Geist also noted that, while "public pressure has helped make Acta marginally better", the text still shows that Acta would "require dramatic changes to many domestic laws with new requirements on statutory damages, injunctions, anti-circumvention rules and ISP safe harbours".

"Many of these provisions are substantive copyright rules, not limited to counterfeiting (as the title of the treaty suggests) nor enforcement (as sometimes claimed)," he added.

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