Anti-Counterfeiting Trade Agreement draft released

Parties to ACTA appear far from agreeing on a final text, with several divergent options included in draft

A draft text of the Anti-Counterfeiting Trade Agreement (ACTA) has been released, showing divergent views on liability limitation

A draft text of the Anti-Counterfeiting Trade Agreement (ACTA) has been released, showing divergent views on liability limitation

The draft text of the controversial Anti-Counterfeiting Trade Agreement (ACTA) being negotiated by 10 nations and the European Union has been released.

The move to release the draft, which outlines a possible international agreement to strengthen copyright protection, comes after criticism the negotiations were being held in secret.

The 39-page document states the parties to the agreement will give intellectual property rights holders access to their judicial systems to pursue civil actions and that the identity of persons involved in infringements be made available.

The agreement also provides for the issuing of an interlocutory injunction on third parties to prevent imminent infringements and obliges signatories to “ensure that the rights of the defendants and third parties shall be duly protected and guaranteed”.

Specific to online service providers the draft text shows parties have not yet reached agreement on what liability should be present and what civil remedies should be allowed if an infringement occurs on a provider’s service.

Additionally, parties have not yet agreed on the actions to be taken by online service providers, which includes Internet Service Providers (ISPs), in regards to infringements.

However, Section 4 of the draft, Special Measures Related to Technological Enforcement of Intellectual Property in the Digital Environment, outlines different options that includes limiting the liability of online service providers should an infringement be made on their service.

In the first option, if the service provider did not know of the infringement, liability and civil remedies would be limited if the infringement occurred by: “Automatic technical processes, and; (ii) the actions of the provider’s users that are not directed or initiated by that provider and when the provider does not select the material, and; (iii) the provider referring or linking users to an online location”.

In the second option, liability would be limited if service providers act expeditiously to “remove or disable access to infringing material or infringing activity upon obtaining actual knowledge of the infringement”. That is, if the infringement occurred through: “Automatic technical processes [that keep the provider from taking measures to prevent the infringement], or; (ii) the actions of the provider´s users that are not initiated nor modified by that provided and when the provider does not select the material or; (iii) the storage of information provided by the recipient of the service or at the request of the recipient of the service”.

However, the draft treaty then goes on to present two options that say:

  • 1. The above limitations on liability could be conditional to service providers having a policy to address infringements and actively “removing or disabling access” to materials on receipt of a legally acceptable notification of copyright infringement. But governments could not make the limitation of liability conditional on service providers monitoring their services.
  • 2. The limitations on liability “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”.

While specific mention of a three-strikes ban is not made, this latter option provides scope for governments to create such legislation.

However, according to an ACTA statement issued the Australian Government no member country will “mandate a ‘graduated response’ or ‘three-strikes’ approach to copyright infringement on the Internet”.

According to the Department of Foreign Affairs and Trade (DFAT), “Australia, Canada, the European Union (represented by the European Commission, and the European Union President), Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States are participating in ACTA negotiations”.

Australian Trade Minister, Simon Crean said the government will not seek to change national law through the agreement, but could not discuss the details of ACTA. Australia has not joined ACTA to drive change in Australian domestic laws. Taking part in the negotiations does not oblige Australia to join any resulting treaty, DFAT notes on its web site.

According to the statement, ACTA will not:

  • Interfere with a country’s ability to respect its citizens’ fundamental rights and liberties.
  • Oblige ACTA participants to require border authorities to search travellers’ baggage or their personal electronic devices for infringing materials.
  • Address the cross-border transit of legitimate generic medicines.

The next ACTA meeting will be held in Switzerland in June this year.

Read the full text of the draft treaty

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