ACTA rolls into Washington DC

POSTED BY Rick Shera
16 August 2010

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

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In a drive to have the ACTA (Anti Counterfeiting Trade Agreement) done and dusted by the end of this year, the tempo of meetings has been increased with another one starting today in Washington DC, USA, only a little over a month since the last round in Lucerne, Switzerland.

The text being discussing was leaked out of the European Union (as is now standard practice it seems).

Thomas Beagle over at Tech Liberty has a useful summary of the improvements that have been made since the previously leaked Wellington version and the issues that remain.

I wanted to pick up briefly on one of those issues though, as it's subtly hidden away in a footnote but nonetheless could have major consequences for us in New Zealand (and in Australia for that matter).

ACTA seeks to solidify rules relating to an ISP's liability for infringement by its customers. Of course, the original motive for ACTA was simply to enhance enforcement processes rather than to change underlying liability, but it seems to have morphed a long way from that.  So, in relation to what are referred to as Enforcement Procedures in the Digital Environment, there are suggestions in the text that each country will have to provide for third party ISP liability.  In New Zealand we currently provide for this by way of authorisation liability.  Our law on this is similar to that in Australia, which is why the iiNet case is being followed with such interest over here In very general terms, this means an ISP has to have a degree of knowledge of, and ability to control what is being done with, its systems so it can be said to have condoned a particular infringement by its customer.

Despite the characterisation of ISPs as mere conduits, these issues can be finely balanced (as can be seen in iiNet, the appeal for which has just been heard).  Even a slight alteration in this area will therefore have potentially dramatic effect.

That is why there should be concern at the proposal to include the lower US standards of contributory infringement and inducement, as is currently included in a defining footnote (footnote 46 on page 19 of the current text).  I am not the first to raise concerns over this development.  For example, see page 19 of Kimberlee Weatherall's detailed analysis of this issue as it arose in the last draft.  The effect of agreeing to that lower standard will be potentially increased liability for New Zealand ISPs. 

While it is good to see improvements in the safe harbour defence provisions for ISPs, they should not come at the expense of expanded liabilty in the first place. New Zealand officials should resist this imposition of US principles, even though allowing them through might not require any change to be made to our Copyright Act. This change is more subtle and insidious than that because it would potentially only come into play when a New Zealand Court comes to determine what is meant by authorisation. In my view, that change is unwarranted but it certainly should not be introduced into New Zealand law through an ACTA back door.

POSTED BY Rick Shera
16 August 2010

posted in l@w.geek.nzTPPAIntellectual PropertyCopyrightTrademarks

VIEWED 4148 TIMES

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