Last Updated on April 27, 2010, 4:50 am ET
The negotiating parties have finally released an official draft of the Anti-Counterfeiting Trade Agreement into the open for all the world to see and judge. Those of us who have been critical of the leaked versions of the secret text have found very little in the official release that changes our concerns.
ARL has endorsed a new, consolidated analysis (PDF), prepared by the Library Copyright Alliance’s counsel Jonathan Band, which discusses the key problems that persist in the released ACTA text. A summary of those problems is below the jump.
Unbalanced Export of U.S. Law. This is the key overarching concern that many of us have with ACTA. U.S. law is a careful balance between the rightsholder’s limited monopoly over creative expression and the right of the public to use and share that expression. The Supreme Court has said explicitly that if not for exceptions and limitations, the copyright monopoly would be incompatible with the First Amendment. Because ACTA weighs heavily in favor of censorship and control, it betrays core Constitutional values.
Statutory Damages. ACTA may require signatories to provide for statutory damages. The provision in ACTA is inconsistent with U.S. law because it does not include the exceptions and limitations to damages that exist in our law. Committing to the provisions in ACTA would make it harder for Congress to reform our domestic statutory damages regime, which judges have decried as leading to “monstrous and shocking” awards. Finally, because of its lack of exceptions and mitigating provisions, ACTA’s statutory damages requirement could expose American companies to excessive liability abroad.
Third-Party Liability. ACTA’s requirement of third-party liability is the first of its kind in an international agreement. It is also inconsistent with U.S. law, especially in the way it requires liability but makes exceptions merely optional.
ISP Safe Harbors. The “safe harbors” in ACTA fall short of that description and do not provide protection equivalent to U.S. law.
Anti-circumvention. Once again, ACTA requires signatories to enact penalties for hacking digital locks, but important exceptions for things like research and teaching are merely optional. In fact, ACTA’s narrow view of permissible exceptions may actually be inconsistent with U.S. law.
Misleading labels. Commentators have argued for over a year that the Anti-Counterfeiting Trade Agreement is badly misnamed. Trade in counterfeit goods—i.e. cross-border trafficking in goods such as pharmaceuticals or microchips designed to fraudulently imitate valuable brands or designs—is a serious threat to public health and safety as well as to the legitimate makers of those products. Rather than address these threats, ACTA drafts have mostly focused on increasing the rights and remedies of the entertainment industry in the online environment. The policy implications of international counterfeiting and those of domestic online copyright infringement are almost completely distinct. A treaty to change the scope of copyright online should be named appropriately.
The draft treaty also uses the word “piracy” repeatedly to refer to copyright infringement, despite the fact that the term does not exist in U.S. copyright law. That kind of charged, spun language has no place in a legal document.
In sum, the official release of the ACTA draft text has addressed (to some extent) only one criticism, namely the extreme secrecy of the process. On substance, there is still plenty to be concerned about. Going public should be the first step, not the last, in a legitimate ACTA negotiation process.