So what’s up with ACTA?

After the (at least for now) defeat of SOPA and PIPA, the copyfight has been moving towards a more international setting with the arrest of the Megaupload owners in New Zealand, and now with the Anti-Counterfeiting Trade Agreement (ACTA). In fact, ACTA is not new, but it has been making the rounds because the European Commission went ahead and signed it recently. This has prompted a wave of protests across Europe, including the now iconic picture of several Polish legislators wearing Guy Fawkes masks. I applaud the fact that people are willing to take copyright policy seriously, engage in the democratic process and exercise their right to protest. We are Anonymous indeed.

After an initial interest in ACTA (see my earlier analysis) I had neglected it, mostly because after the final text was published, I saw nothing that really jumped out at me. Most of my initial worries about the treaty have been either removed or watered down, so I sort of forgot about ACTA. Bigger fish to fry and all that. However, in the last few weeks the rhetoric about ACTA has been growing, and often not in a positive manner. ACTA is worst than SOPA (sorry, but it is not). ACTA will allow you to be erased from the Internet (errr… no). ACTA will allow customs agents to check your iPod (no, it won’t, who writes this stuff?). The debate has even pitched traditional allies, and even the much-loved Ars Technica is getting a bad rap for publishing two articles that expose the lies against ACTA.

I have to side with Ars on this one. I have been increasingly worried because of the falsehoods that I notice being repeated all around the Internet. I do think that most of the people posting false and/or misleading information are doing it with good intentions, I would always prefer to assume ignorance and not malice. The problem is that ACTA is a highly technical agreement, not an easy read by any stretch of the imagination, so I am guessing that a lot of people simply think “tl;dr” and trust someone else’s opinion instead. But even if you read the agreement, you must have a good idea of existing legislation to know what exactly will be changed if the treaty is implemented. This is where I think most of the uninformed analysis comes from. So because I am really too busy and should be doing something else, here is a personal list of the worst that ACTA has to offer in its present form (specifically with regards to copyright-related items).

General notes about the treaty

One can only understand ACTA in context of its troubled negotiating history. The agreement was the opposite of transparent, and when initial drafts were leaked, it read like the wish-list for the entertainment industry. It is rumoured that Hollywood maximalists had a lot to do with the initial draft, as it contained provisions for a three-strikes system, amongst other things. The more draconian positions were removed, and each text was slightly better than its predecessor. The reason for this is that each negotiating party had its own concerns. Europe was concerned about too much patent protection (perhaps ironically), while the US as always was more concerned about the dominance of European geographic indications and their potential implications for trade mark law. The end result is a neutered treaty filled with compromises and too much vagueness. There are too many general provisions that already exist in national law, and therefore will probably not change one coma in existing legislation. Take this example from Art. 6:

“Each Party shall ensure that enforcement procedures are available under its law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.”

I cannot think of a single piece of legislation that would need to be changed to comply with the above. Even if we consider this as a general principle to be used in legal interpretation, it is useless. ACTA is riddled with similar non-norms. I will have to ignore most of these in the present analysis, but provisions in the following articles already exist in all systems that I am aware of: Arts 8.1, 9.1, 10.1, 12.1, 13, most of 16-20, 25, 27.5, 27.6, and 27.7.

Civil enforcement

The single most worrisome paragraph in ACTA for me is Art. 9.2, which reads:

“At least in cases of copyright or related rights infringement and trademark counterfeiting, each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority to order the infringer to pay the right holder the infringer’s profits that are attributable to the infringement. A Party may presume those profits to be the amount of damages referred to in paragraph 1.”

This enacts a woefully vague obligation to signatory parties, as it creates a system of damages that could result in mega-awards against infringers. One of the most controversial aspects of copyright in recent years is how to calculate lost profits, as industry sources have been claiming that each download and infringing copy is a lost sale. There is clear danger that this paragraph could be used to spread this practice internationally. Thankfully, it would seem that the second part of the paragraph could be used to temper the first part of the agreement, as parties could use damages as a calculation of lost profits.

One of the main worries that I had with regards to ACTA was that it would export the American concept of statutory damages to countries that lacked such concept. The treaty has now been modified to contain three options when it comes to damages, and countries will have to enact one of these at least:

“(a) pre-established damages; or
(b) presumptions for determining the amount of damages sufficient to compensate the right holder for the harm caused by the infringement; or
(c) at least for copyright, additional damages.”

This compromise is much better than simply enacting a version of (a), as it won’t elicit many changes to existing damages regimes. Without doing a comprehensive survey, I think that most signatories have a version of either (a) or (c) in their systems.

Privacy

The second biggest concern that I have with ACTA is that it opens the door to bad practices when it comes to privacy and the identification of alleged infringers by ISPs. Art. 27.3 says:

“A Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of trademark or copyright or related rights infringement, and where such information is being sought for the purpose of protecting or enforcing those rights. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.”

Although many legal systems already allow some form of procedure to identify infringers (i.e. Norwich Pharmacal Orders in the UK), the current system is far from harmonised. Any such norm, presented in a vague manner with only a few mentions of protection of rights could result in a system where copyright trolls thrive. Moreover, it has been known for a while that IP address identification is not an exact science, so any new obligation should recognise this fact.

Criminal enforcement

One of the biggest concerns with regards to ACTA is that it will enhance the criminal regime for copyright infringement. Art. 23 says:

“Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale. For the purposes of this Section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.”

Most signatories already have criminal provisions in their legislation as a result of other agreements, including TRIPS. The problem with the above is its the vagueness, as it talks about infringement carried out on a commercial scale. Would a popular torrent file apply?

Another potentially draconian provision is contained in Art. 24.3, which says:

“A Party may provide criminal procedures and penalties in appropriate cases for the unauthorized copying of cinematographic works from a performance in a motion picture exhibition facility generally open to the public.”

Jail for camming? Seriously? The only redeeming feature of the above is that it uses the word “may”, which means that this is not an obligation.

Finally, paragraph 24.4 may also be of concern:

“With respect to the offences specified in this Article for which a Party provides criminal procedures and penalties, that Party shall ensure that criminal liability for aiding and abetting is available under its law.”

This paragraph seems designed specifically to deal with a potential hole in current legislation. While it is clear that direct copyright infringement can be a criminal offence under certain circumstances, the criminality of secondary infringement is still in dispute. Even Megaupload has prompted questions with regards to the validity of treating it as a criminal case. The above paragraph would make sites like Megaupload criminally liable even if no direct infringement is proven on their part.

Concluding

This is it. Sure, there are some rather worrying aspects to ACTA, but SOPA it ain’t. I strongly believe that it is vital not to overplay ACTA’s importance because IP maximalists will probably attempt to pass bad legislation in the future (will be writing about TPP in the next few days). We are in danger of being dismissed and accused of crying wolf because some people have been exaggerating the threat posed by ACTA. Those who advocate saner Internet regulation can only lose if we are found to be spouting falsehoods.

Now excuse me, I’m off to print a Guy Fawkes mask.