The Daily Finance is reporting on a newly leaked memo from the European Union analyzing and critiquing ACTA’s Internet chapter.
According to the memo, ACTA’s Internet chapter would have provisions dealing with secondary liability, ISPs safe harbors from copyright liability, and DMCA style civil and criminal penalties for breaking digital locks. The memo points to how provisions in this chapter would conflict with European Union (EU) law and go beyond the requirements of existing international treaties. For instance, the secondary liability provisions would require ACTA member countries to enact laws against contributory copyright infringement, a legal concept that does not exist in EU law and in the laws of some member countries. Furthermore, the chapter does not define circumstances which would trigger such liability and some terms used in this section have no clear meaning in EU countries.
The existence of the secondary liability section in the Internet chapter and its substance gleaned from the memo indicates one more thing: contrary to USTR’s claim, ACTA would be making substantive law and not merely enforcing existing law. Third party liability rules in US law are judge-made and lend themselves to varying interpretations. Having to codify these rules for purposes of ACTA would necessarily require choosing one of these interpretations, effectively codifying that interpretation and depriving Congress of its right to make laws.
The memo also states that, like the secondary liability provisions, the ISP safe harbor provisions would also require modifications to EU law. The Internet chapter requires ISPs to maintain certain conditions in order to qualify for safe harbors. It mentions that termination of customer access could be one such condition. The memo expresses concern that a condition requiring termination of Internet access without a court order might not be acceptable to all EU countries. This concern reflects the idea that the decision to terminate Internet access, a basic means of communication and civic engagement in today’s world, should be made by a court and not a private corporation. Yet the USTR is pushing the EU and other countries to adopt policies that completely disregard this basic principle.
With respect to the provision dealing with Technological Protection Measures (TPMs), the memo raises concerns about overbroad application that disregards user rights. It also notes how ACTA would require civil and criminal penalties and does not provide states with any flexibility in the matter. The leading international instruments with respect to digital technology, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), merely require “adequate legal protection and effective legal remedies” against circumvention without specifying whether both civil and criminal penalties should be instituted.
Other parts of the memo express concern that the Internet chapter leans too heavily in favor of major rights holder interests at the expense of all others. For instance, referring to the opening part of the chapter, the memo says:
the proposal does not state that the procedures etc. also shall be fair, equitable and/or proportionate in relation to, for example, an alleged infringer.”
Referring to the ISP liability limitation section, the memo states:
there is only reference to 'facilitate the continued development of industry'. This is much too limited as the overarching objective for the most important provision of this chapter. This is a very important deficit of the current text. It is politically very important to emphasize balance and fairness, to mention culture and individual creators and not only industry.”
What is one to make of the contents of the leaked memo? It seems to provide some hope that a major ACTA negotiator is going to act in balanced manner considering the interests of users and owners. However, the provenance of the memo is unclear. Does it represent an initial discussion draft or the final EU position before the Seoul negotiations? These questions again lead us to repeat the old mantra – transparency. Without transparency, we will never be able to ensure that ACTA represents the interests of all. If all the documents that have leaked so far are any indication, ACTA’s provisions threaten serious harm to the rights of consumers, and small creators. The public needs access to the ACTA texts to protect its own interests. Public interest representatives need to have just as much influence over negotiators as large content owners.