The next round of negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) — the secret copyright treaty that targets the Internet — starts tomorrow in Guadalajara, Mexico. From January 26-29, negotiators from Australia, Canada, the European Union, Japan, Jordan, Mexico, Morocco, New Zealand, the Republic of Korea, Singapore, Switzerland, and the United States will discuss civil enforcement, border measures, enforcement procedures in the digital environment (a.k.a. "the Internet chapter" of ACTA) and transparency.
It's been over two years since the ACTA negotiations were first announced in October 2007, and yet no one outside of these negotiators and a cherry-picked handful of U.S. lobbyists have seen the draft ACTA text. However, leaked information shows that ACTA raises significant concerns for citizens' rights and the future of the open Internet.
Because ACTA is intended to create new global IP enforcement norms above those in the 1994 agreement on Trade Related Aspects of IP, it threatens citizens' access to knowledge across the world. With that in mind, this week we are inviting expert commentators from other countries to share their perspective on how ACTA is likely to affect their national law and policy, and their citizens' rights. We will also be highlighting commentary and analysis from others following ACTA in negotiating countries.
Today, we'd like to welcome David Fewer, the Acting Director of the Canadian Internet Policy and Public Interest Clinic (CIPPIC), to give us his thoughtful perspective on how ACTA will affect Canadian citizens.
A Canadian View of ACTA
ACTA has been on the radar of CIPPIC since the negotiations for the nebulous trade agreement were first announced. CIPPIC’s very first submission to the Canadian government on the topic (in April of 2008) identified three concerns: (1) venue, (2) process, and (3) substance.
On venue and process, we had concerns about any process outside of traditional international multilateral intellectual property forum, and particularly about a process whose content was to be deliberately hidden from public view (although not, even in ACTA’s earliest days, from view of senior rightsholders). ACTA’s lack of transparency was troubling from the start. And where was the articulation of any justification for the agreement in the first place? No one ever pointed to a remedial failing of participants’ intellectual property statutes that required a new international trade agreement to address.
On substance, we expressed a shared concern over genuine counterfeiting, but saw very few opportunities to improve existing intellectual property laws to address them. Simply, counterfeiting is already illegal, and most counterfeiters already know that. Saying so, again, in an international agreement would likely have no impact on such activity. Similarly, Canadian IP laws enjoy a robust array of remedies, including statutory damages for copyright infringement, sufficient to offer whatever deterring effect such remedies might. We saw no evidence that counterfeiters saw intellectual property as rights without remedies. Accordingly, we suspected that counterfeiting was always a stalking horse, an excuse for a bit of policy laundering that could radically overhaul Canadian intellectual property laws in ways that domestic political parties wouldn’t, and couldn’t, dare. We argued that international intellectual property agreements should not be "norm-setting exercises" that create new rights, undermine or eliminate defences, exceptions and limitations to rights, or otherwise circumvent domestic legislatures. Such exercises are profoundly undemocratic. Canada’s last such venture into international IP norm-setting — signing the WIPO Copyright Treaty and the WIPO Performers and Phonograms Treaty — had resulted in a decade of debate and policy angst as domestic policy makers struggled to find a way to implement Canada’s obligations under the treaties in a manner consistent with Canadian values — values that demonstrate a commitment to taking user rights seriously. Finally, the nebulous "Internet Chapter" just made us nervous. We felt negotiators could pack a great deal of privacy-invading and speech-suppressing mischief into such a chapter.
Two years on, those concerns have been largely borne out. Venue and process concerns — particularly around the lack of transparency characterizing all thing ACTA — continue to occupy us. The steady drip of leaks has, ironically, at least partially addressed transparency concerns, but what we have learned through those leaks substantiates our concerns with the content of the Agreement.
The leaks have also substantiated our concerns with ACTA’s potential to undermine Canadian sovereignty over domestic intellectual property policy and the Canadian values they express. Interestingly, secret ACTA negotiations proceeded alongside public consultations about Canadian copyright policy. "Copyright Consultations" held by Canadian Industry Minister Tony Clement and Minister of Canadian Heritage James Moore provoked over 8000 submissions from the public, a simply overwhelming response. Those submissions have been posted online and are available for review. Simply, the content of many of those submissions is at odds with the content of the leaked ACTA Internet Chapter. Policy decisions Canadians presumed were under the microscope were at the same time holding the anvil of ACTA.
Consider Internet Service Provider (ISP) liability. In Canada, the debate over the liability of ISPs has been settled in a unique manner: the creation of a "notice and notice" system whereby ISPs are not liable for the infringing activity of their customers provided certain conditions are in place, including that they pass on to the customer any allegation of infringement. There is neither a takedown requirement nor a termination obligation. Two bills — C-60 and C-61, neither of which became law due to changes in government — have sought to codify this system, indicating a political consensus rejecting more extreme systems such as that of the American DMCA or the various "three strikes" or "graduated response" proposals seen elsewhere. While some rightsholder groups continue to advocate for a more aggressive approach to ISP liability, we see no evidence that such approaches have any traction in Canada. And why would they? There is no evidence that Canada’s notice and notice system is any less effective than other systems in addressing infringement issues. Yet ACTA would apparently sweep away this political consensus in favour of a much more radical system for addressing ISP liability. The European Commission analysis of ACTA's Internet chapter, leaked in November, 2009, discusses a very different system, involving both mandatory notice and takedown and, as a condition of eligibility of the immunity, the ISP must employ a policy for addressing "unauthorized storage or transmission of materials protected by copyright or related rights". This sort of requirement is not a part of any law, and looks to be a mechanism for imposing – as a matter of the policy of private actors, rather than as a statutory requirement – filtering, termination, and other controversial policies.
Returning to the question of implementation of the requirements of the WIPO Copyright and Performers and Phonograms Treaties, the leaked EU analysis describes a global DMCA — anti-circumvention laws that prohibit circumventing a technical measure to access a protected work, even if for a lawful purpose. This again contradicts the state of debate over Canadian policy: two different copyright bills have proposed two different approaches to circumvention liability, with Bill C-60 imposing liability for circumvention for an infringing purpose, and C-61 favouring the DMCA’s "access" model of liability. The touchstone of all Canadian governments has been to find an approach that reflects Canadian values and is "made in Canada". ACTA puts the lie to such aspirations.
The ACTA negotiations have made a mockery of Canada’s copyright consultations. And ACTA is not alone in this respect: Canada is currently a party to international trade agreement negotiations with the European Union. The end product of these discussions also threatens to gut domestic IP policy: the EU’s proposed IP Chapter leaked online in December, and it doesn’t even vaguely resemble Canadian law. It apparently even goes so far as to require copyright term extension to life of the author plus 70 (from Canada’s current life +50 default) — a proposal that no Canadian politician would dare float.
Both ACTA and the Canada-EU trade discussions threaten to displace domestic control over IP policy. While it might be said that it is better for Canadian negotiators to be at the table influencing developments than left on the outside looking in (like the rest of us), it might be better for Canada to walk away from the entire process. Participation merely threatens to lend the process a legitimacy that, from Canadian eyes, it currently lacks.