Human Property

Copyright law, both in the United States and around the world, may be set to change drastically in the next few years — at least if there is any truth to the rumors related to a new international treaty known as the Anti-Counterfeiting Trade Agreement (or “ACTA”).

The treaty is being negotiated between the United States, Canada and the European Union (among other countries).  It aims to put in place a single set of copyright rules and regulations binding on all signatories.

Little is known about the actual contents of ACTA, as all negotiations and documents have been veiled behind unusual levels of secrecy.

In fact, the negotiations are so secret, they have been declared “properly classified national security secrets” by the Obama Administration.   The Administration has used this classification to deny any requests for information or documents under the Freedom of Information Act.

The high levels of secrecy have led to rampant speculation about the contents of the treaty and how it would change current copyright laws.  In September 2008, leaked documents led to speculation that ACTA would:

Require Internet Service Providers to monitor all consumers’ Internet communications, terminate their customers’ Internet connections based on rights holders’ repeat allegation of copyright infringement, and divulge the identity of alleged copyright infringers possibly without judicial process, threatening Internet users’ due process and privacy rights; and potentially make ISPs liable for their end users’ alleged infringing activity.

Interfere with fair use of copyrighted materials.

Criminalize peer-to-peer file sharing.

Interfere with legitimate parallel trade in goods, including the resale of brand-name pharmaceutical products.

Impose liability on manufacturers of active pharmaceutical ingredients (APIs), if those APIs are used to make counterfeits — a liability system that may make API manufacturers reluctant to sell to legal generic drug makers, and thereby significantly damage the functioning of the legal generic pharmaceutical industry.

Improperly criminalize acts not done for commercial purpose and with no public health consequences; and Improperly divert public resources into enforcement of private rights.

A clearer picture of ACTA’s provisions came a few weeks back, when a second document (a European Commission summary paper) was again leaked.  Here are some key quotes and analysis:

Safe-harbours for liability regarding ISPs, based on Section 512 of the Digital Millennium Copyright Act (DMCA)2, including a preamble about the balance between the interests of internet service providers (ISPs) and right-holders. See also KORUS Chapter 18.10.30. According to US, the language proposed is somewhere in the “middle” between the WIPO internet treaties, KORUS and the DMCA, which probably means that it is more detailed than the first but not as specific as the latter

This confirms that ACTA is probably looking to impose a “notice-and-takedown” regime (similar to one contained in the Digital Millennium Copyright Act) on other countries that currently do not have one in place.  Under this type of system, an internet content provider is required to “take down” any allegedly infringing material after receiving “notice” from the copyright holder.

On the limitations from 3rd party liability: to benefit from safe-harbours, ISPs need to put in place policies to deter unauthorised storage and transmission of IP infringing content (ex: clauses in customers’ contracts allowing, inter alia, a graduated response). From what we understood, the US will not propose that authorities need to create such systems. Instead they require some self-regulation by ISPs.

Under current American law, ISPs are only required to put in place a sufficient notice-and-takedown system and in “appropriate circumstances,” terminate users who repeatedly or blatantly infringe copyright.  Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1109-1110 (9th Cir. 2007).

The important change appears to be the need for a “graduated response” to copyright infringement, as well as “self-regulation” by ISPs.  Will this require ISPs to monitor their networks?  Can your internet access be revoked based on mere allegations (but no proof) of copyright infringement?  These are key questions.

Here’s a section that relates to DVD copying (Blueray copying?) software:

Section 4: Will focus on technical protection measures (TPMs). Language inspired by US-Jordan Free-Trade Agreement (article 4.13)4, as well as by the WIPO Internet Treaties (articles 11 WCT and 18 WPPT):
- Parties to provide adequate civil and criminal remedies that are specific to
TPM infringements, i.e. treat these as separate offenses form “general”
copyright infringements.
- TPM infringements would be: (i) prohibition of circumvention of access
controls and; (ii) prohibition of manufacture and trafficking of circumventing
DRM devices.
- There will be exceptions to these prohibitions available to ACTA members.
- “Fair use” will not be circumscribed.
- There will be no obligation for hardware manufacturers to ensure
interoperability of TPMs.

The gist of all that legal-ese is that countries will be required to enact laws preventing the cracking of any technical measures designed to prevent infringement.  In the US, the Digital Millennium Copyright Act makes it illegal for anyone to crack anti-copy restrictions on DVDs, for example.  This has provided a schizophrenic legal regime where it remains technically legal to copy a DVD for some purposes (a personal copy of a DVD you already own) but illegal to crack any technical measures which prevent that DVD from being copied in the first place.  It looks like ACTA seeks to expand these restrictions to other countries.

In sum, what can be expected from ACTA?  At a high level, it appears that the proposed changes will have greater impacts in countries overseas, especially in countries that may not have the strict copyright laws of the United States.  In the United States itself, ACTA may impose greater surveillance obligations on ISPs to monitor their networks — the “graduated response” language.

At the end of the day, however, the devil will be in the details.  We should know more as more items get released…or leaked.