The new Anti-Counterfeiting Trade Agreement is… problematic News & Analysis

Please note that this post is from 2009. Evaluate with care and in light of later events.

The internet chapter of the Anti-Counterfeiting Trade Agreement, a secret copyright treaty whose text Obama’s administration refused to disclose due to “national security” concerns, has leaked. It’s bad.

Secret copyright treaty leaks. Its bad. Very bad. – Boing Boing.

Michael Geist has more:

Despite the efforts to combat leaks, information on the Internet chapter has begun to emerge (just as they did with the other elements of the treaty).

The ACTA Internet Chapter: Putting the Pieces Together.

He adds that the draft text is modeled on the U.S.-South Korea free trade agreement, and focuses on five issues:

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.
2. A requirement to establish third-party liability for copyright infringement.
3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs).
4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements.
5. Rights Management provisions, also modeled on U.S. free trade treaty language.

For me, one key problem area is that #4 in Geist’s list apparently eliminates the fair use/fair dealing exception to anti-circumvention provisions (reverse engineering, computer testing, privacy, etc.). Fair use is absolutely key to a proper balance between allowing reuse that encourages new innovation and rewarding existing innovation through temporary monopolies.

Geist points out, too, that the treaty does not stop there. It contains additional provisions “that include statutory damages, search and seizure powers for border guards, anti-camcording rules, and [requirements for] mandatory disclosure of personal information.”

This is not a direction that I support, because I think it actually limits innovation and development, rather than supporting them.