The ACTA Threat
By Yoshang Cheng, David Rolnitzky, Lee Schneider, Jessica Voytek,
A coalition of governments are secretly meeting in an attempt to form a far-reaching agreement over copyright infringement. The secret agreement, called the Anti-Counterfeiting Trade Agreement (ACTA), would establish international standards on intellectual property rights enforcement throughout such participating countries as the US, Canada and several members of the EU. The agreement will formalize a process for finding 3rd parties liable for the infringements of their subscribers, and limiting their liability if they remove the content. Although the actual wording of this agreement has not been officially published, reliable sources report that these negotiations are occurring behind closed doors, without public input. The agreement is being structured similarly to the North American Free Trade Agreement (NAFTA), except it will create rules and regulations regarding private copying and copyright laws. Recently a document containing the ACTA provisions related to the Internet was leaked, which has spurred more discussion.
The ACTA has come under fire from a number of organizations, including the Electronic Frontier Foundation and Public Knowledge, claiming that ACTA has several potentially serious concerns for consumers’ privacy, civil liberties, innovation and the free flow of information on the Internet, and the sovereignty of developing nations. Increased liability for ISPs (Internet Service Providers) could result in increased monitoring of users, which could then impede their civil rights. Although developing nations have not been involved with negotiations, chances are that their compliance with the regulations will be required as a condition of future trade agreements, effectively limiting the ability for developing countries to choose policy options best suited to their countries.
The effect of this secret agreement on ISP’s could be far-reaching. These new provisions would require ISPs to take down possibly infringing content, as well as delete the accounts and subscriptions of users who are accused without any judicial oversight. As a result, the so-called “chilling effect” documented by Urban and Quilter in their 2005 study could be expanded on a global-scale. The chilling effect is a term that describes the practice of using DMCA takedown notices to improperly limit the speech of others, usually for commercial or political gain. According to the study, an astonishing 57% of DMCA take down notices sent to Google were targeting apparent competitors. ISPs, fearing liability from this new international coalition, would be compelled to comply with these notices without any kind of judicial oversight.
Civil rights, including freedom of expression may be impacted by this agreement. In the US, the fair use doctrine was adopted in order to mitigate the tension between freedom of expression and copyright restrictions on expression. Fair use is not a standard component of copyright law in every country. In a society without fair use, unauthorized use would be infringement. “If Hollywood could order intellectual property laws for Christmas what would they look like? This is pretty close,” said David Fewer, staff counsel at the University of Ottawa’s Canadian Internet Policy and Public Interest Clinic, in an article posted on Canada.com. Therefore this legislation would unduly benefit corporations at the expense of civil liberties.
The implementation of these new rules raises civil rights concerns. For example, media outlets in Ireland and Canada have proposed scenarios in which people would be searched at international borders by security-turned-copyright-enforcer. Such search and potential seizure of any items that “infringes” on copyright laws, such as ripped CD’s and movies, could be done without probable cause.
The impact of the agreement also has some potential consequences for policy in countries both within and outside the countries negotiating the ACTA. As stated earlier, the agreement has a provision to create a legal regime to “encourage ISP’s to cooperate with right holders in the removal of infringing material” by giving them safe harbor from certain legal threats. Though the US already has a “takedown notice” provision, the agreement could provide other coalition governments with new leeway to by-pass the normal legislative process in their countries in order to get DMCA-like legislation on the books. Furthermore, tying such legislation to foreign treaties may constrain Congress’s ability to modify the DMCA in the future.
National sovereignty may also be impacted by ratification of this agreement. Developing nations (such as China, India and Indonesia) have not been included in the negotiations but may still be required (indirectly) to comply with them. Since the developing nations rely on international trade agreements for their well being, it would be easy for the ACTA nations to require compliance as a prerequisite to trade. These laws would then supercede the ability for these developing nations to create laws for their countries.
The effects of ratifying ACTA in its current state would be far-reaching. The applications of DMCA laws in the US, specifically the safe harbor provisions and take down notice process, are easily manipulated for commercial or political gain. The rights of corporations are placed above the rights of citizens, and the process of law is turned on its head. Accusation is proof enough to force action to remove the offending content. The agreement would restrict the choices available to agreeing nations and developing nations alike. With so much at stake concerning the rights of individuals and the implications for international policies, it is troubling that these negotiations are being conducted secretly.
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