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Almost-final, much weaker ACTA draft published

The Anti-Counterfeiting Trade Agreement is this close to escaping its protracted, mostly secret negotiations -- and now that the Office of the United States Trade Representative has posted a copy (PDF) of the nearly finalized text, we can see how much of this accord has shriveled away.

As ACTA critics more conversant with international law than I have noted (see, for example, posts by American University law professor Sean Flynn and University of Ottawa law professor Michael Geist), this week's draft amounts to a surrender by the U.S. Many of the obnoxious provisions I denounced last fall and again this spring are gone.

That represents an unimpressive win for people who don't want to be regarded as criminals when they treat a digital download as something they bought and own.

First, ACTA no longer exports the worst aspects of the Digital Millennium Copyright Act -- the 1998 law that, among its other flaws, makes it a crime to unlock a DVD to back it up to your computer. Although it has a loosely worded ban on tools used to unlock "digital rights management" technologies, a footnote frees states from requiring gadget manufacturers and software developers to ship products that obey DRM restrictions.

Second, ACTA no longer demands that countries hold Internet providers responsible for copyright infringement committed by their subscribers. A densely worded, still-disputed provision in its Article 2's fifth section, "Enforcement of Intellectual Property Rights in the Digital Environment," suggests that they enact such rules -- but it also offers enough wiggle room for future legislators to gut that mandate. (I'm assuming that they don't need an international agreement to draft bad laws; some DMCA restrictions exceed those that the U.S. agreed to implement as part of an earlier copyright treaty.)

Some aspects of ACTA, however, remain up in the air. U.S. negotiators don't seem to have succeeded in persuading other countries to leave patent-rights disputes out of this deal. The 24-page draft does not feature the phrase "fair use" -- the doctrine covering a buyer's right to recycle part of a copyrighted work for such purposes as criticism -- anywhere.

And the biggest ACTA issue is as much of a mess as ever. Its signing countries -- the United States and the member states of the European Union, plus Australia, Canada, Japan, Korea, Morocco, New Zealand, Singapore, Switzerland and Mexico -- don't include the main offenders in copyright disputes. Until you get China to sign this document, it probably won't accomplish much.

So why did we bother? Why spend all this time negotiating ACTA -- while alienating and angering onlookers with counterproductive secrecy -- to come up with a document that does so little? Couldn't we have stuck with the provisions already settled in an earlier World Trade Organization agreement?

Perhaps I'm missing something. Take a look at the draft of the document and let me know what you think of it -- which clauses still deserve to be stricken and which ones serve a purpose?

By Rob Pegoraro  | October 7, 2010; 6:54 AM ET
Categories:  Policy and politics  
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