Michael Geist is reporting that the text of the secret Anti-Counterfeiting Trade Agreement (ACTA) chapter on internet enforcement has been leaked. As suspected, the text is unlikely to require major changes to Australian law, but it does do two very concerning things:

• Increased pressure on intermediaries (ISPs) to monitor and police their networks: in the recent iiNet litigation, the Federal Court found that ISPs were under no obligation to terminate the accounts of subscribers that the film industry alleged (without proof) were infringing copyright. This is a contentious point, and we expect to see the copyright industry lobby for legislative change. The ACTA provides them with more ammunition to argue for a three-strikes policy, which is unfortunate.
• Increased entrenchment of the harshest level of copyright sanctions: my biggest concern with ACTA is what it means for the way that international copyright law is developed. Copyright is such an important part of the framework that governs the way that we interact online - it underpins nearly every aspect of modern communication. Because the balance between providing authors with an incentive to create and users with the ability to access is so critically important, the way in which copyright policy is made is also critically important for a society. The ACTA, a secret plurilateral agreement, ensures that the role of the public is minimised, allowing corporate rightsholders to set the agenda for copyright policy.

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The negotiations for the ACTA, the secret Anti-Counterfeiting Trade Agreement, are underway in Mexico this week, and there's been a lot of coverage around the world of the lack of transparency in these talks. For those who are not familiar with the agreement, I want to recommend Michael Geist's excellent five part ACTA Guide:

• The ACTA Guide, Part One: The Talks To-Date
• ACTA Guide, Part Two: The Documents (Official and Leaked)
• ACTA Guide, Part Three: Transparency and ACTA Secrecy

Parts four and five will be up later this week. So far, these posts do a great job of succinctly explaining the ACTA process, what we know of the content, and the concerns about the lack of transparency.

The next round of negotiations on the secret Anti-Counterfeiting Trade Agreement (ACTA) are due to begin this week in Guadalajara, Mexico. On the agenda this week are civil copyright measures, border measures, internet enforcement measures, and, very briefly, the issue of the lack of transparency in the negotiations.

While much of the text is hidden from public view, the EU’s analysis of the negotiations was leaked late last year. The leak confirms that the ACTA is designed to impose the tough sanctions developed by the US for copyright infringement on other signatories. The main goal of the ACTA seems to be to bypass the WIPO system and entrench US-style copyright regulations around the world. In this sense, a multi-lateral agreement may be more effective than the series of bi-lateral agreements that we have seen in recent years because it has the opportunity to bind several countries at once to implement US-equivalent law.

By doing away with the open international process that WIPO conducts, the ACTA poses a real threat to the reasoned modification of intellectual property laws worldwide. By doing so in secret, it ensures that democratic processes are marginalised; the public will only get to see the text once it has been finalised, at a point when it is likely to be too late, politically, for states to withdraw support.

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I spoke on Sunrise this morning about Joel Tenenbaum's case in the US; a young university student who will now pay around three quarters of a million Australian dollars in damages to four record labels after a judge upheld a jury decision that could've maxed out at $4.5m USD.

Joel's case is terrifying, only the second person in the United States to stand up to the record labels' campaign of suing their customers for copyright infringement under the particularly pointy US copyright laws.  Most people who have had action brought against them have settled out of court under the threat of galactic damages and legal fees for what amounts to copying songs for free when they should have paid $0.99 for them.

What's particularly unique about this case is the way Joel chose to defend, unfortunately the judge found that the way he and his legal team - headed by a Harvard Law School professor - didn't act with sufficient respect during the proceedings to have his particularly broad defence listened to.  Joel didn't argue that he didn't do it, or that he didn't do enough to warrant this sort of trouble, he instead tried to argue that each song that he downloaded was too insignificant to be considered an act of copyright infringement - a "fair use" defence.   This hasn't flown, at least in part due to Joel's insistence on filing silly motions like trying to have the case televised, and it unfortunately sets a precedent that of the two cases that have gone to trial in the US, both have ended with astronomical damages for the defendant.

What's this mean for Australia though?  We don't have these same laws, right?  Well not yet we don't.  Our latest round of copyright law changes were as a result of a free trade agreement with the United States, extending copyright terms from 50 to 70 years after the author's demise and polishing a bunch of other areas of our laws.  In order to have access to free trade with the US, a condition is that we make our copyright laws as nasty as theirs and a new round of negotiations on this issue are due to be completed next year with the first discussions being held in secret in Morocco (this is the 'ACTA' agreement).  It's not unreasonable to think that down the track, our habit of copying United States legislation will mean that an Australian family will be mortgaging their house to cover a $750,000 fine for downloading a few songs.

Joel's behaviour wasn't great, faced with a perplexing 30km/h speed limit on an 8 lane straight freeway, he sped.  That's not the way the law works, we don't get to break it just because it's stupid.  But EFA including myself, don't excuse the behaviour of the recording industry in nailing their second victim to bankruptcy.

The new round of Anti-Counterfeiting Trade Agreement (ACTA) negotiations has started in Seoul. This round sees the introduction of the long-anticipated internet enforcement measures, which the US has drafted in secret. Michael Geist reports that the draft text is modeled on the US - South Korea free trade agreement, and focuses on five issues:

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.
2. A requirement to establish third-party liability for copyright infringement.
3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). For example, in order for ISPs to qualify for a safe harbour, they would be required [to] establish policies to deter unauthorized storage and transmission of IP infringing content. Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30. They include policies to terminate subscribers in appropriate circumstances. Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.
4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements. For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules. These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception. Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices. The current draft does not include any obligation to ensure interoperability of DRM.
5. Rights Management provisions, also modeled on U.S. free trade treaty language.

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A few days ago, a Swedish court found the four figures behind thepiratebay.org guilty of criminal copyright infringement and sentenced them to pay approximately $5M AUD in damages and serve a one year prison sentence. The severity of the punishment is surprising, particularly as the operators of the Pirate Bay played a fairly loose role in any copyright infringements -- merely providing an index of torrents already posted and tracked elsewhere.

But whatever we may think of The Pirate Bay, this case raises another example of a very troubling period for copyright law. Pirate Bay and other public trackers are clearly responding to consumer demand, and tougher sanctions for copyright infringement are unlikely to change that. Over the past ten years, we have seen that these actions have rarely, if ever, been successful in curbing the volume of filesharing. New filesharing technologies developed after Napster, Aimster, Grokster, Kazaa, and the creators of other networks were successfully sued. This trend is likely to continue, because the underlying demand is not being addressed.

The goals of copyright are noble. We all want to ensure that professional creators have the ability to be paid for their work. But the current approach of imposing harsh punishments on users and intermediaries is not helping with that goal.

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Michael Geist is reporting that ”[t]he European Parliament has voted for a proposal to bring more transparency and public access to documents. The resolution includes specific language about the Anti-Counterfeiting Trade Agreement.”

Acting in accordance with Article 255(1) of the EC Treaty, the European Commission should immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available.

The justification for the language is:

The Anti-Counterfeiting Trade Agreement (ACTA) will contain a new international benchmark for legal frameworks on what is termed intellectual property right enforcement. The content as known to the public is clearly legislative in character. Further, the Council confirms that ACTA includes civil enforcement and criminal law measures. Since there can not be secret objectives regarding legislation in a democracy, the principles established in the ECJ Turco case must be upheld.

Geist notes that ”[t]he vote sends a strong signal on the need to open the ACTA process and heightens the pressure on the negotiating countries to remove the veil of secrecy.”

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