While there is still considerable disagreement - lots of square brackets indicating areas where the text has not achieved consensus - the countries did make some progress last week in New Zealand. There will be another round of negotiations in June in Switzerland, followed by at least two more rounds in the fall. The target remains the end of 2010 to conclude a deal, but there will still need to be considerable compromise. Moreover, the continuing position of the U.S. and E.U. that they will not change their domestic laws will have to change since there are too many inconsistencies for both to be right.
Today's release marks an important development that highlights the value of public pressure. As politicians and the public demanded greater transparency, the negotiating countries presumably concluded that the issue was becoming a major impediment to concluding an agreement and decided to make it available (the fact that it was already leaked and that the countries standing in the way of transparency were publicly identified were undoubtedly additional considerations). Moreover, the benefits of public pressure can also be seen in parts of the text. The near-consensus on a de minimis provision - which was not even included in the initial proposals - reflects a desire to address concerns around personal searches at the border. Similarly, the removal of the U.S. footnote on graduated response may also reflect public concern and pressure.
Public pressure has helped make ACTA marginally better, but the release of text confirms many of the fears regarding the substance of the treaty. As discussed below, it would require dramatic changes to many domestic laws with new requirements on statutory damages, injunctions, anti-circumvention rules, and ISP safe harbours. Many of these provisions are substantive copyright rules, not limited to counterfeiting (as the title of the treaty suggests) nor enforcement (as sometimes claimed).
Moreover, the institutional issues around ACTA remain a huge concern. This is explicitly an attempt to circumvent WIPO and the more open, transparent, and inclusive international process. The implications are very significant for all countries as this undermines the ability for many countries to have their concerns heard. Instead, many will face demands to comply with a treaty from which they were completely excluded during the negotiation process.
Full analysis of the updated consolidated text will take some time, but a few quick comments on key issues in the text.
The Internet Chapter
The Internet chapter has attracted the most amount of attention in the press and online. Note that there are still lots of square brackets, including on basic issues such as the scope of the provisions (disagreement over to include patents) and on some issues whether the provisions are required or recommended (ie. shall or may).
ISP Safe Harbour/Liability
The key provision - and the most contentious - is the ISP safe harbour provision. At the moment, there is even disagreement over whether it is a requirement or recommendation. There are also several options on the table, with the U.S., EU, and Japan all tabling proposed language.
i. Three Strikes/Graduated Response
This has been one of the hot button issues and countries have tried to counter concerns by arguing that there is no mandatory three strikes provisions within ACTA. That is true. In fact, the footnote proposed by the U.S. which envisioned three strikes as a model policy for ISPs has been removed from the consolidation (the footnote now only notes that one country - likely Japan - would like language confirming that its national law complies with the ACTA provision). This indicates that the U.S. has dropped the reference to three strikes from its proposed language on ISP liability.
However, that does not mean that three strikes has disappeared from the draft entirely. The U.S. proposal for ISP liability is one of three options currently being considered. The European option preserves, but does not require, three strikes:
Paragraph 3(a) shall not affect the possibility for a judicial or administrative authority, in accordance with the Parties legal system, requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility of the parties establishing procedures governing the removal or disabling of access to information
The EU will argue this is consistent with the law in a few of its member states. If the approach is adopted, it will clearly keep three strikes on the table and could be used in other ACTA member countries to encourage its adoption. Note that Japan has offered a third alternative which involves the development of codes of conduct between rights holders and ISPs.
ii. Notice and Takedown
ACTA still contains a notice-and-takedown requirement for ISPs to qualify for a safe harbour. That is inconsistent with Canadian law, which has no such requirement and has twice proposed a notice-and-notice system. Notice-and-notice has been used effectively for many years in Canada.
Anti-Circumvention Legislation
The anti-circumvention provisions continue to mark a renegotiation of the WIPO Internet treaties by mandating the implementation of the DMCA. The provision calls for adequate and effective legal protection for technological protection measures (much like WIPO), but then requires provisions against devices that can be used to circumvent and some countries want the provision to extend to access controls (neither in WIPO). There are still considerable square brackets on this provision, but the direction is clear - limit the flexibility that exists under international law for the protection of TPMs.
Civil Enforcement Chapter
The countries still disagree on scope - some want it extended to all IP rights, others limited to copyright and trademark. The proposed language still includes broad injunction powers and requires the establishment of statutory damages, something not found in many ACTA countries. Moreover, Canada and New Zealand appear to dropped their request for the following limiting language:
For greater certainty, a Party may limit or exclude damages in certain special cases.
The statutory damages provision still includes disagreement over whether it is required (U.S. and Japan) or optional (EU, Canada, New Zealand).
There is much more here - analysis to follow.
Border Measures Chapter
There is still disagreement on scope as the EU wants the option to extend to all IP, others want it limited to copyright and trademark. There was major progress in New Zealand on the de minimis provision, which is designed to address fears of iPod searching border guards. Prior drafts contained several proposals. The current consolidation reflects near consensus:
Parties may exclude from the application of this Section small quantities of goods of a non-commercial nature contained in travelers’ personal luggage [or sent in small consignments.]
There are still broad disclosure and information sharing requirements within the chapter.
Criminal Enforcement Chapter
The chapter still targets both commercial infringement and cases of non-commercial "wilfull" infringement. This section illustrates the downside of removing attribution from the text. The leaked consolidation showed many variable proposals. The new text simply places everything in square brackets and does not flesh out the different proposed language.
The EU proposal to include "inciting, aiding, and abetting" also remains in the text, in square brackets. Proposals to target labels and camcording in theatres remain in the text.
Other Chapters
ACTA contains many other chapters on institutional issues, capacity building, international cooperation, and more. A quick scan suggests those chapters remain unchanged. They were not on the New Zealand agenda.
