As governments negotiating the secretive Anti-Counterfeiting Trade Agreement (ACTA) meet in Seoul this week, public interest concern has surfaced over leaked information on internet enforcement.

The leaks “confirm everything that we feared,” wrote Gwen Hinze of the Electronic Frontier Foundation. “It’s bad. Very bad,” said Cory Doctorow, at influential blog BoingBoing.

It “provides firm confirmation that the treaty is not a counterfeiting trade, but a copyright treaty,” said University of Ottawa professor Michael Geist.

According to leaked documents from recent weeks, sources said the negotiating language includes the requirement that signatories provide for third-party liability. This is an issue that has sparked concern in key internet businesses such as Google as well as internet service providers worried they will be made responsible for actions taken by users of their network. The requirement is unique among major international IP treaties, said Hinze.

It also requires the creation of civil and criminal remedies specifically for infringing technological protection measures, including the prohibition of making or distributing tools to get around such measures. And it would require the creation of civil and criminal remedies for removing information about rights management from content.

Empirical evidence seems to indicate digital rights management technology – in spite of built-in flexibilities – prevents some actions allowed under copyright law, such as difficulty using pieces of copyrighted work for educational purposes, Patricia Akester of the Centre for Intellectual Property and Information Law at the University of Cambridge wrote in a recent op-ed in Intellectual Property Watch.

EFF: US Negotiators Will “Harm US Technology Industry”

On liability for third parties, the agreement would have a “safe-harbour” for internet service providers, releasing them from liability if they meet the certain conditions. These conditions would include having policies to remove incentives for unauthorised storage and transmission of information thought to be infringing, and having notice and takedown provisions in place so ISPs can be informed of and act on allegedly copyright violating content.

These include “policies to terminate subscribers in appropriate circumstances,” said Geist, adding that notice and takedown is not required by the World Intellectual Property Organization.

And one proposed mechanism for determining “appropriate circumstances” is the use of a “three-strikes” test, which would allow for legal action to be taken on the third accusation (IPW, Enforcement, 7 October 2009). This test has been “rejected by the European Parliament and by national policymakers in several ACTA negotiating countries” wrote Hinze.

This means “US negotiators are seeking policies that will harm the US technology industry and citizens across the globe” in order to satisfy one of the content industries chief goals, Hinze added. If the three-strikes test is used, the ACTA laws will be less flexible than US law, which currently allows ISPs to themselves determine the nature of appropriate circumstanced, she said.

In a submission to the US Trade Representative last year, Google called internet businesses the “wrong target” for such liability, and said making them so would be “potentially contrary to US law, and in any event not appropriate subject matter for an Executive agreement not submitted to the Congress” (IPW, Enforcement, 18 September 2008).

The United States has been working on the draft ACTA text under negotiation in the 2 to 6 November meeting since July, according to sources. It was apparently modelled after text in a recent US-South Korea bilateral free trade agreement (available here [pdf]).

The US Trade Representative said they had been consulting with stakeholders including content providers, who generally favour strong IP enforcement online, and internet freedom advocates, who are more concerned with preserving neutral and open access to the internet, sources said of the leaked information.

Transparency at Issue

Transparency also will be discussed on 6 November, according to the tentative agenda [pdf] of the meeting.

A letter was sent 3 November to President Obama over concerns on the lack of transparency and calling for public access to ACTA information. It was circulated by Knowledge Ecology International and is being signed by an increasing number of internet stakeholders.

After a year of “deep secrecy” despite outcry from stakeholders, the USTR is offering access to a small number of individuals on condition of non-disclosure, said the letter. Most of these, it adds, were business interests.

WIPO has apparently been left largely in the dark on ACTA’s details, its Director General Francis Gurry acknowledged at an October press conference (IPW, WIPO, 22 October 2009), who said “we prefer open, transparent international processes to arrive at conclusions that are of concern to the whole world [and] IP is of concern to the whole world.”

This “creates a small special class of citizens who have rights superior to the majority,” “gives the government too much discretion in deciding who can monitor and criticise its operations,” and ultimately “does not inspire respect for the norms that will eventually emerge” from the process, said KEI.