Posted on 12/03/2009 5:57:44 PM PST by JerseyHighlander
EU ACTA Analysis Leaks: Confirms Plans For Global DMCA, Encourage 3 Strikes Model Monday November 30, 2009 The European Commission analysis of ACTA's Internet chapter has leaked, indicating that the U.S. is seeking to push laws that extend beyond the WIPO Internet treaties and beyond current European Union law (the EC posted the existence of the document last week but refused to make it publicly available). The document contains detailed comments on the U.S. proposal, confirming the U.S. desire to promote a three-strikes and you're out policy, a Global DMCA, harmonized contributory copyright infringement rules, and the establishment of an international notice-and-takedown policy.
The document confirms that the U.S. proposal contains seven sections:
Paragraph 1 - General obligations. These focus on "effective enforcement procedures" with expeditious remedies that deter further infringement. The wording is similar to TRIPs Article 41, however, the EU notes that unlike the international treaty provisions, there is no statement that procedures shall be fair, equitable, and/or proportionate. In other words, it seeks to remove some of the balance in the earlier treaties.
Paragraph 2 - Third party liability. The third party liability provisions focus on copyright, though the EU notes that it could (should) be extended to trademark and perhaps other IP infringement. The goal of this section is to create an international minimum harmonization regarding the issue of what is called in some Member States "contributory copyright infringement". The U.S. proposal would include "inducement" into the standard, something established in the U.S. Grokster case, but not found in many other countries. This would result in a huge change in domestic law in many countries (including Canada) as the EU notes it goes beyond current eu law.
Paragraph 3 - Limitations on 3rd Party Liability. This section spells out how an ISP may qualify for a safe harbour from the liability established in the earlier section. These include an exemption for technical processes such as caching. As reported earlier, ACTA would establish a required notice-and-takedown system, which goes beyond Canadian law (and beyond current EU law). Moreover, ACTA clearly envisions opening the door to a three-strikes and you're out model, as the EU document states:
EU understands that footnote 6 provides for an example of a reasonable policy to address the unauthorized storage or transmission of protected materials. However, the issue of termination of subscriptions and accounts has been subject to much debate in several Member States. Furthermore, the issue of whether a subscription or an account may be terminated without prior court decision is still subject to negotiations between the European Parliament and the Council of Telecoms Ministers regarding the Telecoms Package.
Paragraph 4 - Anti-circumvention Provisions. ACTA would require civil and criminal penalties associated with anti-circumvention provisions (legal protection for digital locks). The EU notes that this goes beyond the requirements of the WIPO Internet treaties and beyond current EU law which "leaves a reasonable margin of discretion to Member States." The EU also notes that there is no link between the anti-circumvention provisions and copyright exceptions. The U.S. proposal also requires the anti-circumvention provisions to apply to TPMs that merely protect access to a work (rather than reproduction or making available). This would again go beyond current EU law to include protection against circumventing technologies like region coding on DVDs. From a Canadian perspective, none of this is currently domestic law. As previously speculated, the clear intent is to establish a Global DMCA.
Paragraph 5 - Civil and Criminal Enforcement of Anti-Circumvention. This section requires both civil and criminal provisions for the anti-circumvention rules, something not found in the WIPO Internet treaties. The anti-circumvention provisions are also designed to stop countries from establishing interoperability requirements (ie. the ability for consumers to play purchased music on different devices). The EU notes that this not consistent with its law, which states "Compatibility and interoperability of the different systems should be encouraged." Of course, might reasonable ask why such a provision is even in ACTA.
Paragraph 6 - Rights Management Information protection. This section includes similar criminal and civil requirements for rights management information.
Paragraph 7 - Limitations to Rights Management Information protection.
In summary, the EU analysis confirms the earlier leak (though the Internet chapter has seven sections, rather than five). The fears about the U.S. intent with respect to ACTA are confirmed - extending the WIPO Internet treaties, creating a Global DMCA, promoting a three-strikes and you're out model, even stopping efforts to create interoperability mandates. ACTA would render current Canadian copyright law virtually unrecognizable as the required changes go far beyond our current rules (and even those contemplated in prior reform bills). This begs the question of whether the Department of Foreign Affairs negotiation mandate letter really goes this far given the domestic changes that would be required. This latest leak also reinforces the need for all governments to come clean - releasing both the ACTA text and government analysis of the treaty should be a condition of any further participation in the talks.
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Christian Engström, Pirate MEP http://christianengstrom.wordpress.com/category/english/
Michael Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-commerce Law. He has been commenting on the ongoing ACTA negotiations on his blog.
In his latest entry he provides a summary of a leaked EU document on ACTA :
The document contains detailed comments on the U.S. proposal, confirming the U.S. desire to promote a three-strikes and you’re out policy, a Global DMCA, harmonized contributory copyright infringement rules, and the establishment of an international notice-and-takedown policy.
Read the summary by Michael Geist and the leaked EU document.
I am quite disgusted by the contents of this document. The US position contains more or less everything that you can think of when it comes to restricting freedom and civil liberties in the information society. If you want something that is the very opposite of an Internet Bill of Rights, you can find it in the US position. ”Land of the Free” — yeah, right.
I am also quite concerned by the attitude of the Commission, as it comes across in this document. Instead of just saying no to these outrageous proposals, the Commission seems focused on nitpicking and clarifying details. Maybe I am reading too much into the tone of what is after all a technical analysis paper, but it still has me concerned.
For example: When the Americans want to introduce liability for linking to material that is in breach of copyright, the Commission does not reject the idea outright, as it should. Instead it goes into a complicated discussion about whether you should make a distinction between ”commercial” and ”non-commercial” hyperlinks, and how these two cases should be treated (page 4).
But in any case, the leaked document from the Commission is a very interesting read, and it underlines our basic demand:
Put all papers on the table, NOW!
It is not acceptable that new legislation that restricts both our fundamental rights and the free and open internet is being drafted in secret negotiations by non-elected officials together with representatives of a foreign power.
This simply not how laws should be made in a democratic society. It’s embarrassing to have to point out something so obvious.
Hi abb,
Not a direct article about the collapse of the media, but a article about the media industry’s reactionary political response to their existential threat. You might be interested?
This is how the powers to be make there internet opposition go silent. Everything referring to anything will be infringement. The mighty forums will essentially be shut down.
They will attempt to use legal machinery first. That’s how newspapers attempted to silence radio news in the early 1930s. Didn’t work then, but it was messy as will their attempts to strangle the ‘net.
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