Good rundown on Anti-Counterfeiting Trade Agreement (ACTA) by Michael Geist

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Michael Geist offers us a useful background on the Anti-Counterfeiting Trade Agreement (ACTA) talks happening now in Mexico in The ACTA Guide, Part One: The Talks To-Date

He includes a chronology going back to 2004 on origins of the anti counterfeiting trade agreement. He also provides a summary of the leaked U.S. proposal from last November. See especially these provisions that tighten inducement and access (as the DMCA does).

Paragraph 2 - Third party liability.  The third party liability provisions focus on copyright, though an EU document notes that it could (should) be extended to trademark and perhaps other IP infringement.  The goal of this section is to create an international minimum harmonization regarding the issue of what is called in some Member States "contributory copyright infringement".  The U.S. proposal would include "inducement" into the standard, something established in the U.S. Grokster case, but not found in many other countries.  This would result in a huge change in domestic law in many countries (including Canada).

Paragraph 4 - Anti-circumvention Provisions.  ACTA would require civil and criminal penalties associated with anti-circumvention provisions (legal protection for digital locks).  This goes beyond the requirements of the WIPO Internet treaties and beyond current EU law which "leaves a reasonable margin of discretion to Member States."  There is no link between the anti-circumvention provisions and copyright exceptions.  The U.S. proposal also requires the anti-circumvention provisions to apply to TPMs that merely protect access to a work (rather than reproduction or making available).   This would again go beyond current EU law to include protection against circumventing technologies like region coding.  From a Canadian perspective, none of this is currently domestic law.  As previously speculated, the clear intent is to establish a Global DMCA.

Paragraph 5 - Civil and Criminal Enforcement of Anti-Circumvention. As noted above, this section requires both civil and criminal provisions for the anti-circumvention rules, something not found in the WIPO Internet treaties. The anti-circumvention provisions are also designed to stop countries from establishing interoperability requirements (ie. the ability for consumers to play purchased music on different devices).  The EU notes that this not consistent with its law, which states "Compatibility and interoperability of the different systems should be encouraged."  Of course, might reasonable ask why such a provision is even in ACTA.

Paragraph 6 - Rights Management Information protection. This section includes similar criminal and civil requirements for rights management information.


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