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 ‘ACTA Internet Chapter Leaks: Renegotiates WIPO, Sets 3 Strikes as Model’ is the full headline to Michael Geist’s latest post on ACTA, the so-called Anti-Counterfeiting Trade Agreement.

“If Hollywood could order intellectual property laws for Christmas, what would they look like?” – David Fewer, executive director of the University of Ottawa’s Canadian Internet Policy and Public Interest Clinic, once asked, adding:

“This is pretty close.”

The Three Strikes element, created by the corporate entertainment cartels and touted by them around the world, is presented by front men such as Peter ‘Mandelson in the UK and president Nicolas Sarkozy in France, as local legislation.

“Several months after a European Union memo discussing the ACTA Internet chapter leaked, the actual chapter itself has now leaked.  First covered by PC World, the new leak fully confirms the earlier reports and mirrors the language found in the EU memo”, says Geist in his blog, continuing >>>

This is the chapter that required non-disclosure agreements last fall.

The contents are not particulary surprising given the earlier leaks, but there are three crucial elements: notice-and-takedown, anti-circumvention rules, and ISP liability/three strikes.

Notice-and-Takedown

The notice-and-takedown provision, which is a pre-requisite for intermediary safe harbour from liability, requires:

an online service provider expeditiously removing or disabling access to material or activity, upon receipt of legally sufficient notice of alleged infringement, and in the absence of a legally sufficient response from the relevant subscriber of the online service provider indicating that the notice was the result of a mistake or misidentification. except that the provisions of (II) shall not be applied to the extent that the online service provider is acting solely as a conduit for transmissions through its system or network.

This would represent a change in Canadian law.  Both prior copyright reform bills (C-60 and C-61) established notice-and-notice systems, rather than notice-and-takedown.  There is currently an informal agreement to use notice-and-notice, which has proven effective (the Entertainment Software Association of Canada told the Liberal copyright roundtable earlier this month that 71% of subscribers who receive a notice do not repost the content within a week).  ACTA would trump domestic law and the current Canadian business practice.

Anti-Circumvention

The anti-circumvention provisions are even more problematic as they effectively represent a renegotiation of the WIPO Internet treaties.  The proposed ACTA provision states:

In implementing Article 11 of the WIPO Copyright Treaty and Article 18 of the WIPO Performances and Phonograms Treaty regarding adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, performers or producers of phonograms in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonograms, each Party shall provide civil remedies, as well as criminal penalties in appropriate cases of willful conduct that apply to:

(a) the unauthorized circumvention of an effective technological measure that controls access to a protected work, performance, or phonogram; and

(b) the manufacture, importation, or circulation of a technology, service, device, product, component, or part thereof, that is: marketed or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than circumventing an effective technological measure.

Article 11 of the WIPO Copyright Treaty (the anti-circumvention provision) was intentionally left broad in scope to allow for various implementations.  The treaty merely requires “adequate legal protection and effective legal remedies against the circumvention of effective technological measures.”  It does not require access controls nor prohibitions on the manufacture or distribution of devices that can be used to circumvent.  Indeed, when the DMCA was being discussed in the United States, Bruce Lehman, the Under-Secretary of State, acknowledged that the treaties could be implemented without a devices provision.  Moreover, he stated that the DMCA would be used to pressure other countries into following the U.S. example:

When that legislation is in effect, then we will have a template that we can use, that the Trade Representative can use, that we in the Commerce Department can use, the State Department can use, when we are in negotiations with other governments to advise them as to what they need to do to implement their responsibilities in these treaties to provide effective remedies.

ACTA is therefore viewed as a mechanism to win the policy battle lost in Geneva in 1996.  It would force countries like Canada to adopt the U.S. approach, even though the treaty explicitly envisioned other possibilities.

Three Strikes/Graduated Response

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 leak 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.

From a process perspective, leaks coming out of the Mexico ACTA talks revealed that the ISP provisions were discussed, but the anti-circumvention provisions were not.  This suggests that the anti-circumvention provisions from the U.S. are the only proposal currently on the table.

“According to a New Zealand official, there may be alternate proposals for the three-strikes model, all of which will presumably be discussed during the next round of negotiations in April in New Zealand”, Geist adds.

Michael Geist – ACTA Internet Chapter Leaks: Renegotiates WIPO, Sets 3 Strikes as Model, February 21, 2010

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