Lid lifted on secret ACTA cauldron

THE CONTROVERSIAL Anti-Counterfeiting Trade Agreement (ACTA) draft was finally made public today after pressure from the EU Commission and civil liberties groups.

The eighth round of the ACTA negotiations report drafted in New Zealand last Friday has been published online.

Previous ACTA drafts weren't exactly the enigma wrapped in a mystery that its proponents had intended, thanks to a document leaked online in November 2009 and discussed by the Electronic Frontier Foundation. The original fear about the clandestine ACTA draft was that it was going to impose a 'three strikes and you're out' global trade law on Internet access that had been ghost-written by media content providers.

Gwen Hinze surmised that the leaked November draft supported that theory, saying, "The Internet provisions have nothing to do with addressing counterfeit products, but are all about imposing a set of copyright industry demands on the global Internet."

These include, "obligations on ISPs to adopt Three Strikes Internet disconnection policies, and a global expansion of DMCA-style TPM [technical protection measures] laws," she said.

However, new amendments in the public version published today, while still worrying, aren't quite as draconian as first suspected. Now that the EU Commission has seen the negotiation text, it is happy for its head to sign on to the ACTA proposals. EU Trade Commissioner Karel De Gucht said, "I am very glad that the EU convinced its partners to release the negotiation text," and, "It will not have a negative impact on European citizens."

The statement issued from Brussels also goes on to say that 'three strikes' will not be a legislative option, as it reads, "The negotiation draft shows that specific concerns, raised in particular by the civil society, are unfounded. No party in the ACTA negotiation is proposing that governments should introduce a compulsory '3 strikes' or 'gradual response' rule to fight copyright infringements and Internet piracy."

Despite the fact that the EU Commissions was happy to accept the draft, the omission of 'three strikes' provisions remains a blow against the US copyright cartels' and the UK's Digital Economy Act's proposals. In fact, the new draft goes so far as to state that penalised offenders should receive fair punishment rather than be subject to blanket 'three strikes' laws. It said that "those measures, procedures, and remedies shall also be fair and proportionate."

This reversal has also been accompanied by other changes in the eighth ACTA draft report.

ISPs will be "conditionally" protected from infringement lawsuits by copyright holders. They can't be held accountable directly as long as the ISP continues "adopting and implementing a policy to address the unauthorised storage or transmission of materials protected by copyright."

A repeat offender provision was removed from the draft, but ISP's can now be forced by countries to disconnect Internet subscribers to "terminate an infringement".

Governments can't proactively apply filtering technology to track down copyright infringers, but ISP's must still apply due process similar to the US Digital Millennium Copyright Act (DMCA). ISPs will have to take down content after receiving a letter from rights holders. However, if no copyright infringement has occurred, an ISP can put the content back up. No change there then.

Previous drafts prescribed banning users for cracking digital restrictions management (DRM) locked content but countries will have great freedom in this version. Countries "may provide for measures which would safeguard the benefit of certain exceptions and limitations to copyright and related rights, in accordance with its legislation."

Customs officials can now investigate copyright infringement without the knowledge of rights holders. However, border cops won't have the power to go over your music track list on portable devices to see if you have any illicit Phil Collins tracks about your person.

Content providers can now obtain an injunction if they can prove an infringement is about to take place and camcorder recordings of films are a big no-no. This draft has them listed as a criminal act.

There are some compromises, but the ACTA is due to be signed as an international treaty by the end of this year, so we doubt there's a lot of room for manoeuvre remaining. The drafters have had several years to conduct secret negotiations, and have only published the ACTA draft text after facing mounting pressure from civil liberties groups and the EU Commission.

The question is, have they only let the cat out of the bag now because it's too late to press for any further changes? µ