Leaked ACTA draft removes threat to ISPs

 

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By Stewart Mitchell

Posted on 7 Sep 2010 at 09:49

A leaked draft of the latest version of the controversial Anti-Counterfeiting Trade Agreement (ACTA) has shown that the participating countries are nearing an agreement on key internet enforcement issues.

ACTA aims to create far-reaching global standards for dealing with intellectual property enforcement, and has raised concerns because it is being drawn up behind closed doors and could supercede existing international agreements.

The leaked draft follows the latest round of talks in Washington last month, held secretly because the US still considers the talks and treaty as classified.

The biggest change in this document is that the countries involved – all major intellectual property producing nations, including the UK – is that the potential signatories appear to be close to agreeing how to police internet piracy.

“The internet enforcement chapter has been among the most contentious since the US first proposed draft language that would have globalised its DMCA [Digital Millennium Copyright Act] and raised the prospect of three strikes and you're out,” said Ottawa University law professor Michael Geist in his blog.

The draft shows the US has dropped the idea of “secondary liability” for ISPs, which would see providers held responsible for piracy. Dropping that plan is seen as a step forward by internet commentators as it places an emphasis on co-operation between content producers, authorities and ISPs, rather than suggesting communications providers should be held responsible for copyright infringement.

In the face of opposition, the US has dropped its demands on secondary liability but is still holding out hope of establishing digital lock rules

“In the face of opposition, the US has dropped its demands on secondary liability but is still holding out hope of establishing digital lock rules that go beyond the WIPO [World International Property Organisation] internet treaties and were even rejected by its own courts,” said Geist.

The draft appears to be largely in line with provisions already in place in the UK, where rights holders can apply through the courts for orders forcing ISPs to hand over details of habitual downloaders.

According to the draft, there is still disagreement on exactly what the agreement would cover, with the EU thinking it should apply to all intellectual property and the US hoping to limit the agreement to copyright and trademark issues.

Indeed, much remains to be discussed when the parties reconvene in Japan in a few weeks' time. Among the hot topics still to be addressed are how the signatories should deal with anti-circumvention technologies, with hard-liners within the talks pushing for agreements that could force countries to police activities such as jail-breaking hardware.