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ACTA trade deal no longer secret; draft released

It's finally out in the open: Months after activists began calling for a draft of the Anti-Counterfeiting Trade Agreement to be made public, and weeks after one leaked, the dozens of governments negotiating this multilateral trade deal ended their absurd effort to keep it a secret.

And now that I've read that 39-page PDF published by the European Union this morning (it has yet to appear didn't appear until later on the Office of the United States Trade Representative's site), I don't like ACTA much more than I did back in November.

acta_draft.png

This proposed agreement is what I thought it was: an intellectual-property land grab that would cement some of the uglier aspects of American law, export those provisions to other countries, possibly import even worse provisions back into the U.S. and, in the bargain, spawn a new and largely redundant international bureaucracy.

Here are some of the provisions you should look for as you read the thing -- not always an easy thing, since it sets off alternative phrasings in brackets without identifying which delegations want which version.

Start with Page 6, where a bracketed phrase sets off one of the biggest issues with ACTA: its potential overreach.

[5. Each Party shall provide that its judicial authorities, except in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings [[at least in cases] concerning copyright or related rights infringement, [patent infringement,] or trademark infringement] that the prevailing party be awarded payment by the losing party of [ [reasonable and proportionate] legal] court costs or fees.

The name of ACTA suggests it covers only trademark violations -- knockoff jackets sold in markets in China, for instance. We've known for a while that it also extends to copyrights. Now people want to lump in patents, even while the U.S. patent system is desperately in need of reform?

On Page 8, you can see a suggestion that "imminent" infringement be stopped by judicial injunction.

Page 10 seems to end the possibility of travelers getting stopped by Customs and having their bags searched for the knockoff jackets they bought in Beijing. But by saying countries "may" -- not "shall" -- exempt the contents of travelers' luggage, it doesn't foreclose that option. Besides which, screeners can exceed their mandates even when they have clear instructions.

From pages 19 through 22, the draft reflects differing opinions on "third-party infringement" -- how guilty your Internet provider or Web hosting provider should be if you use their services to share copyrighted material without permission. One proposal would allow "requiring the service provider to terminate" a service abused for copyright infringement -- which reads to me like the dreaded three-strikes rules popular among Big Copyright and already enforced overseas.

A paragraph on Page 22 would ask each country to "promote the development of mutually supportive relationships between online service providers and right holders," which seems to further encourage three-strikes regimes.

On on pages 22 and 23, the ACTA draft proposes to internationalize the loathsome anti-circumvention provisions of the Digital Millennium Copyright Act -- which stop you from breaking a digital lock on a copyrighted file, even for perfectly legal purposes. As a result, the U.S. would no longer be able to correct that mistake without violating its ACTA obligations.

On Page 27, ACTA proposes that signing states would commit to spending money on, among other things, "promoting the culture of intellectual property."

The document wraps up with a few pages about setting up an oversight committee or steering committee (the parties haven't agreed on a name yet) to coordinate ACTA efforts -- even though that would duplicate many functions already covered by the United Nations' World Intellectual Property Organization, a considerably more inclusive and open body.

You can read other reactions to the first officially published ACTA draft at such sites as Ars Technica, Slashdot and the site of Canadian law professsor and longtime ACTA opponent Michael Geist.

But the reaction I most want to see is yours. Read the draft, and read it carefully -- remember, it could be your law. Then tell me what you think, and in particular if there are any other provisions I should have called out here, favorably or unfavorably.

By Rob Pegoraro  |  April 21, 2010; 12:54 PM ET
Categories:  Policy and politics  
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Comments

Like most government efforts mixing technology and intellectual property -- or just technology generally -- this is a cure worse than the disease.

Posted by: 54Stratocaster | April 22, 2010 3:07 AM | Report abuse

The problem becomes, "who decides a breach of copyright has occurred". Who decides a particular activity is a breach of copyright. E.g. some ISP's are limiting bandwidth based on their belief that nothing but piracy could require downloads/uploads of more than 250GB/month. Many of my internet colleagues are involved in legal P2P (bit torrent) activities. None of these activities are breaches of copyright. We have policed ourselves to avoid conflict with artists and are very sensitive to intellectual property rights. It seems an ill wind is blowing....

Posted by: joetex2222 | April 22, 2010 12:55 PM | Report abuse

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