Copyright agreement draft leaked again

ACTA workings published after Washington DC negotiating round

ACTA deals with IP rghts in the physical as well as digital realm

The latest text of the Anti-Counterfeit Trade Agreement (ACTA), currently being hammered out in negotiations between national and supra-national governments, including the US and EU, has been leaked onto the web.

The draft of the international copyright trade agreement has been published by Knowledge Ecology International after the latest round of negotiations in Washington DC.

The Agreement goes beyond regional legislation, such as the UK’s Digital Economy Act and the Digital Agenda for Europe, in that it deals with intellectual property rights in the physical world, for example pharmaceuticals and luxury goods, as well as rights in the digital realm.

Nevertheless, Article 2, section 4, concerning enforcement of intellectual property rights in digital networks, remains the most controversial area, with a proliferation of parentheses and footnotes added by individual countries’ negotiators.

This was the section that originally contained the “three strikes” measures, which required ISPs to monitor their subscribers’ activity and to cut internet access for repeat offenders.

These measures have since been diluted. The wording now refers to generic “expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement”.

However, ISPs will be obliged to disclose subscribers’ details to rights holders who have good evidence of infringement, as per Article 2.18.4, which reads: “Each party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder, or to a person authorised by the right holder, information sufficient to identify an alleged infringer, where that right holder has filed a legally sufficient claim of infringement of [intellectual property rights] and where such information is being sought for the purpose of protecting or enforcing the right holder's [intellectual property rights].

The text also provides for the prosecution of those who deliberately circumvent digital rights management and similar technologies or make, import or export equipment expressly designed for such circumvention or equipment that has limited commercial value other than to circumvent DRM technologies.

Copyright agreement draft leaked again

ACTA workings published after Washington DC negotiating round

Worries about balancing the rights of digital network users and digital rights holders has also found its way into the wording of a new preamble where the negotiating parties spell out the broad intent of the Agreement: “[The agreement] desires to address the problem of [intellectual property infringement] which takes place by means of digital networks in a manner that balances the [interests] of the relevant right holders, online service providers and users of those networks.”

The preamble also includes wording showing the intent of the negotiators not to restrict trade through excessive regulation, expressing a desire to “ensure that measures and procedures to enforce [intellectual property rights] do not themselves become barriers to legitimate trade”.

The intention of ACTA is to provide an international legal framework for protecting intellectual property rights, overcoming the vagaries of regional courts and precedents. Countries may join – and resign from - ACTA voluntarily.

The countries currently involved include Australia, Canada, the European Union, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the US.

The Agreement is freestanding in that it is not part of other international groups such as the UN or WTO, although its Committee resembles the latter. The European Commission has explained that a freestanding group formed by “interested parties,” specifically to tackle IP infringement, is more likely to succeed than if negotiations were part of the UN or WTO.

Most of the countries or regions involved, including the EU, are reported to be pushing for the negotiations to be more transparent, but the US has insisted on proceedings remaining secret until the final text is agreed.

The text has been leaked within days of each round of talks and an official draft was published on 20 April after a negotiating round in Wellington, New Zealand.