New ACTA Text Leaked

Sean Flynn
September 9, 2010

The new text of the ACTA agreement, showing changes following the Washington D.C. round of negotiations in August, has now leaked. The document is dated August 25, 2010. That text and all the other leaked or formally released texts dating back to 2007 are available at PIJIP's IP Enforcement database.

The most notable change may be the elimination of the old sections 2 and 3 from digital chapter. That change removes the explicit secondary liability plus safe harbor system for ISPs in the digital chapter.

There is some debate among the few people following ACTA closely about whether the change in the digital chapter will in fact remove internet service liability from ACTA's implementation.

My view is that the U.S. and EU will still push strongly for ISP liability and notice and take down provisions as they implement ACTA through technical assistance and, for the U.S., threats of trade sanctions through Special 301. Some of the noteworthy provisions still in the draft text that could be used as the basis for this pressure include:

-Para 1 pf the digital chapter still demands "law so as to permit effective action" against infringement on the internet.

-The old 3 quarter (proposed by Japan) promoting "cooperative efforts with the business community to effectively address" infringement is now out of brackets.

-The old EU/CH proposals for secondary injunctions are still there. EU and CH are still proposing "intermediary" injunctions in 2.X (injunctions) and in 2.5 (provisional measures).

-And the damages section also remains unchanged. So the question there is whether an ISP is infringing "knowingly or with reasonable grounds to know" if it does not take down content after a notice from an owner that it may be copyrighted.

Michael Geist has noted that he finds the language remaining "far less fearsome" for ISPs. He notes that:

-Section 1 of Article 2.18 is very general with no specific provisions identified to meet the effectiveness standard.

-Section 3 is even less of a concern.  It reflects a win for Japan, since it is based on their language.  Far from requiring cooperative efforts such as notice and takedown it requires parties to "endeavour to promote cooperative efforts".  "Endeavouring to promote" is about as far from a positive obligation as you can get while still requiring something.

Image of CD (cc) grytr.


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