ACTA: Latest leak decimates ISP provisions

POSTED BY Rick Shera
06 September 2010

posted in l@w.geek.nz | Intellectual Property | Copyright | Trademarks

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What appears to be the official latest iteration of the Anti Counterfeiting Trade Agreement (ACTA) has been leaked (PDF).

I've only really looked at section 4, Enforcement of Intellectual Property Rights in the Digital Environment, since that is the section which was causing us the most concern here in New Zealand as we at the same time look to introduce a replacement for section 92A of the Copyright Act.

As was rumoured, the text does indeed appear to remove most, if not all, requirements for treaty countries to impose third party liability on ISPs and other third party providers.  Since that has been removed, there is consequently also no need to enumerate the typical DMCA safe harbours.

As a result, we are left with a relatively benign set of provisions (although there is obviously still negotiation going on around access to subscriber information, which needs to be watched).  For example, current New Zealand law would easily comply with the requirements:

Each party shall ensure that enforcement procedures, to the extent set forth in the civil and criminal enforcement sections of this Agreement, are available under its law so as to permit effective action against an act of {US/AUS/NZ/Sing {US: trademark,} copyright or related rights}{EU/J: intellectual property rights} infringement which takes place in the digital environment, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.

2. Each Party's enforcement procedures shall provide the means to address the infringement of {US: copyright or related rights}{ EU/J: intellectual property rights in the digital environment, including infringement that occurs via technologies [US: or services] that can be used to facilitate widespread infringement. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with each Party's law, preserves principles relating to freedom of expression, fair process, and privacy [EU: , among other [US: fundamental] principles].

In brief, I expect the consequences for New Zealand are:

  • Sections 92B-92E, which are currently in force and provide safe harbour protection for ISPs, remain in force and will not need to be changed (although a small change to section 92B is already in train).
  • Sections 92A and 122A-122R (which carry the proposed repeat infringer regime, replacing s92A) will go forward in whichever way is decided, unaffected by ACTA.
  • The awaited decision on the  iiNet appeal in Australia, heard last month, becomes more important.  In the absence of ACTA dictating third party liability principles, iiNet will become the touchstone.
  • The focus should now shift to the Trans Pacific Partnership negotiation, the third round of which is due to start in October.  New Zealand may find itself hard pressed in that negotiation.  Australia already has a FTA with the US and, since Europe is not a party to TPP, there is not the same ability to ally with a strong counter-point to US calls for increased copyright protection/ISP liability.

POSTED BY Rick Shera
06 September 2010

posted in l@w.geek.nzIntellectual PropertyCopyrightTrademarks

VIEWED 5710 TIMES

PERMALINK

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