ISP Liability For Infringement Nuked, ACTA Leak Reveals

According to yet another leaked draft of the highly controversial Anti-Counterfeiting Trade Agreement (ACTA), participating countries will no longer be obliged to impose secondary liability on Internet Service Providers for copyright infringements carried out by their customers. Other harsh measures to counter copyright infringement are still in place.

The level of secrecy which surrounds ACTA, the developing international agreement that aims to target piracy and counterfeiting globally, is unprecedented. It took nearly two years for negotiators to release a heavily redacted draft to the public, but by that time citizens were already fairly well informed having gathered information from previously leaked documents.

Bypassing U.S. opposition to the release of an official text, last night yet another draft leaked out, published by Knowledge Ecology International. The draft contains details on the round of ACTA negotiations which took place last month in the United States.

Notable in the 29 page draft titled ‘Consolidated Text, Reflects Changes Made During the August [Washington] DC Round’ are changes to Section 4 – Enforcement of Intellectual Property Rights in the Digital Environment.

With the relevant texts having been removed from earlier drafts, it appears that countries will no longer be required to impose secondary liability for infringements onto their ISPs. Previously, ISPs would be held liable for the copyright infringements of their customers when they failed to respond swiftly to ‘notice and takedown’ requests from copyright holders.

Although dropping the ISP liability paragraphs could be seen as a step in the right direction, there are still various strict ‘anti-infringement’ measures in place. The countries that sign up to ACTA are being asked to provide relevant authorities with the power to order ISPs to hand over the identities of customers suspected of infringing copyright to rights holders on the presentation of a “sufficient claim of infringement”.

Countries are also required to provide “remedies to prevent infringement and remedies which constitute a deterrent to further infringement” along with enforcement procedures which address “technologies that can be used to facilitate widespread infringement”. Although the text is open to interpretation, it opens the door to all kinds of filtering systems that may be used to block websites which are deemed illegal, a measure that is high up on the ACTA wish list of anti-piracy groups.

Participants are further encouraged to “promote cooperative efforts within the business community to effectively address infringement” while preserving “legitimate competition”, “freedom of expression, fair process and privacy”.

According to an analysis by Michael Geist, the anti-circumvention (DRM-breaking) provisions are still on the table.

“There is general agreement on a broad provision that largely mirrors the WIPO Internet treaties in calling for ‘adequate legal protection and effective legal remedies against the circumvention of effective technological measures.’ If the obligation were to end there, the provision would simply ensure that all ACTA countries establish anti-circumvention rules, with all the flexibility that WIPO allows,” Geist explains.

However, the United States wants to go further – time will tell if they get their way.

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