CDT, EFF, CEA, PK, Others Criticize ACTA Copyright Treaty Draft Language

On March 22, a collection of tech advocates, non-profits and associations opposed to the proposed Anti-Counterfeiting Trade Agreement (ACTA) wrote a letter (embedded below) to Ron Kirk, head of the Office of the U.S. Trade Representative, criticizing the reported draft language of the ACTA.

The lack of transparency around ACTA copyright treaty negotiations has received increased scrutiny from both the media and anti-censorship advocates as provisions have leaked online. Earlier this month, the European Parliament passed a resolution by a 663-13 vote calling for the European Commission, the European Union’s regulatory arm, to release a public draft of the ACTA agreement. President Obama signaled his support for the ACTA copyright treaty at a conference in DC on March 12th. New Zealand is now pushing for greater ACTA transparency as well.

This letter states that “details of the text of the proposed ACTA, and comments and proposals of national participants have apparently but unofficially been made public”. See, for example, this EU document,  a working document from the EU Secretariat, document[PDF], and document.

This letter states that “this negotiation is not primarily about counterfeiting or piracy; nor is at all about trade law. The public rationale that the treaty would not impinge on domestic law has been placed in doubt — particularly when one considers whose domestic law would be endangered.”

On this count, the letter states that the “text reveals detailed substantive attention to … The extent to which principles of inducement, newly introduced by the U.S. Supreme Court in the Grokster case, are to be accepted as supporting a separate basis for copyright liability or are a gloss on existing principles of contributory and vicarious infringement. This is not yet clear even in the United States.”

Some of this ground was covered by Supreme Court’s in June 26, 2005, MGM v. Grokster.a More detail on that case may be found in  “Supreme Court Rules in MGM v. Grokster” in TechLawJournal.  a

The letter regarding ACTA transparency also states that the “text reveals detailed substantive attention to … How technological measure anti-circumvention provisions are to be interpreted and applied, whether they will apply to access to works, whether they are to be limited to circumventions for infringing purposes, and whether account will be taken of the variations in national law, practice, and context, such as U.S. adherence to fair use and the imposition of levies under other national law.”

The signers of this letter include:

Canadian law professor Michael Geist’s ACTA coverage has been instrumental to providing details to the global community of the treaty. As he wrote yesterday:

The leak of the full consolidated ACTA text will provide anyone interested in the treaty with plenty to work with for the next few weeks.  While several chapters have already been leaked and discussed (see posts on the Internet and Civil Enforcement chapters, the definitional chapter, the institutional arrangements chapter, and international coooperation chapter), the consolidated chapter provides a clear indication of how the negotiations have altered earlier proposals (see this post for links to the early leaks) as well as the first look at several other ACTA elements.

Nate Anderson over at Ars Technica also wrote an update on the current status of the ACTA copyright treaty earlier this week. As Mike Masnick blogged at TechDirt, “EU Negotiators Insist That ACTA Will Move Forward And There’s Nothing To Worry About.” Further, as Masnick points out, ACTA is set to cover intellectual property, not just copyrights or trademarks, referring to a post at KEI which features leaked draft document of ACTA.

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