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.

See Michael Geist's blog for more information:

The draft chapter finally puts to rest the question of whether ACTA in its current form would establish a three strikes and you're out model. The USTR has recently emphatically stated that it does not establish a mandatory three strikes system. The draft reveals that this is correct, but the crucial word is mandatory. The draft U.S. chapter does require intermediaries to play a more aggressive role in policing their networks and the specific model cited is the three-strikes approach. In other words, the treaty may not specifically require three-strikes, but it clearly encourages it as the model to qualify as a safe harbour from liability. The specific provision, which is another pre-requisite for intermediary safe harbour from liability, states:

an online service provider adopting and reasonably implementing a policy to address the unauthorized storage or transmission of materials protected by copyright or related rights except that no Party may condition the limitations in subparagraph (a) on the online service provider's monitoring its services or affirmatively seeking facts indicating that infringing activity is occurring;

And what is an example of a policy provided in ACTA? The treaty states:

An example of such a policy is providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat infringers.

This leaks shows how deceptive the USTR has been on this issue - on the one hand seeking to assure the public that there is no three-strikes and on the other specifically citing three strikes as its proposed policy model. Given the past U.S. history with anti-circumvention - which started with general language and now graduates to very specific requirements - there is little doubt that the same dynamic is at play with respect to three strikes.

Of course we already have such a requirement in Australian law, but the iiNet decision means that ISPs do not need to rely on the safe harbours in order to avoid secondary copyright liability. By continuing to push this idea, though, the copyright lobby threatens to change the discourse - and influence the legislature - to make it much easier to introduce three-strikes in the future.


  1. One thing worried me about the iiNet decision. There seems to be wording in there that _allows_ (but doesn't mandate) ISP sharing of subscriber information with copyright owners.

    Section 555 says:

    The Court concludes that disclosure..., which would otherwise be prohibited by s 276, may be disclosed or used due to the exceptions found in ss 289 and 279 of the Telco Act.

    I think that's fairly significant. A copyright holder can get the information from the ISP without a court order (if they satisfy the exceptions). I can understand "use" - the ISP forwards the violation notice to the user. But disclosing the user's information to the copyright holder seems excessive.

    I wouldn't have thought that 289 generally applied unless it becomes common practice for disclosure to happen and hence becomes "usually disclosed".

    279(1) only becomes relevant if giving the copyright holder the information is "performance of the person’s duties as such an employee". That seems a bit circular - "We want it disclosed so it should be part of their job to disclose it. Now, because it's part of their job, they're allowed to disclose it"! (caveat - I haven't read the rest of 279 - only 279(1) that's quoted in the ruling)

    I'm not a lwayer - can anybody else give an opinion here?

    Comment by Graham on 22 February 2010 at 18:35
  2. This goes backwards exactly to the situation in the EU prior the E-Commerce Directive wher ISPs as requested to be the Judge and the jury.

    Comment by clarinette on 22 February 2010 at 18:37