Too Soon to Worry about the Anti-Counterfeiting Trade Agreement (ACTA)?

Digital media law update: The U.S. has been in talks with the E.U., Japan, Canada and a number of other mostly developed nations since 2006 to develop the Anti-Counterfeiting Trade Agreement (ACTA). Several further rounds of ACTA negotiations have been scheduled, including meetings in Mexico this month and in Wellington, New Zealand in April 2010. Assuming an agreement is reached, ACTA, like any other international treaty, will have to be ratified to become U.S. law.

ACTA is supposed to provide international rules for enforcing a broad spectrum of intellectual property rights, including addressing Internet piracy. ACTA is not intended to affect the fundamental rights of the citizens of its signatories. However, virtually any law affecting the Internet has the potential to affect individual rights, such as freedom of expression and freedom of association.

ACTA negotiations have raised considerable concern among Internet access rights groups because the negotiations have been conducted in secret. A long list of industry “insiders” have been permitted to review drafts of ACTA documents — including attorneys associated with Public Knowledge, a consumer rights advocacy group. However, they have been required to sign non-disclosure agreements that prohibit them from sharing what they have learned with the general public.

Despite the secrecy, a number of ACTA-related documents have been leaked to the public. A summary of the ACTA chapter dealing with the Internet was leaked in September 2009, and a set of comments by the E.U. regarding ACTA language proposed by the U.S. was leaked in October 2009. These documents suggest that ACTA is largely being modeled on the Digital Millennium Copyright Act and may not create the great threat to Internet access rights that some claim.

Among other provisions, current ACTA proposals would:

• Require member states to provide for third-party liability for ISPs: Third party liability appears to refer to liability for contributory infringement and for inducing infringement. These legal principles are already enshrined in current U.S. law, including the DMCA. The E.U. objected to this language — but on the grounds that it went too far, because some E.U. member states do not permit civil liability for contributory copyright infringement. Rather, the E.U. indicated that it would prefer that the exact circumstances triggering liability be undefined, and that ACTA only provide for exemptions from civil liability.