Some of the world's biggest economies are gathered in South
Korea this week to discuss copyright law in secret. The plans they
are coming up with are still under wraps, but that has allowed
hyperbole to replace reason amongst those who object, quite
reasonably, to elected officials conducting our business in
secret.
The plans that have leaked this week have caused outrage, but
many of those same propositions already exist in law in the UK, or
are merely mild extensions of existing legal provisions.
Though it is thoughtful of trade negotiators to spare us the
ugly sight of the horse-trading and chicanery that makes up every
law-making process, they may have caused an even uglier spectacle:
feverish speculation that is beginning to border on the
hysterical.
The negotiations surround the Anti-Counterfeit Trade Agreement
(ACTA). This is a trade treaty being negotiated outside of the
usual channels such as the World Intellectual Property Organisation
(WIPO) and World Trade Organisation (WTO). Countries including the
US, Japan, South Korea, Mexico, Canada and New Zealand, as well as
the European Union, have got together to hammer out a plan.
That the proposal is not a part of an existing structure means
that the usual rules of transparency and reporting don't apply. Up
to a point that is the right of those doing the negotiating, but it
does make people suspicious, and it does allow speculation to grow
unchecked.
Negotiations have been going on for more than two years and
people have consistently, and reasonably, called for elected
governments to be more open about what is going on. Some worry that
representatives of the industries most affected by copyright, such
as the music and film businesses, are unduly influencing
proceedings. Because we can't see what's going on, we can't make
sure that that is not the case.
But this week speculation about the content of the eventual
treaty in parts ran away with itself. Some leaks emerged about what
might be in the final document and commentators were quick to cry
foul. But if they look closer they will see that many of the
provisions already exist in law, at least in the UK.
It has been said that each country that signed the treaty would
have to create a 'laundry list' of penalties to deter people from
infringing copyright on a commercial scale. That already exists in
the UK. File-sharing could be prosecuted as a criminal offence
under copyright law.
The treaty, it was said, would criminalise trading fake
packaging for music and films. That is already an offence in the
UK. Camcording films would be criminalised: again, that is law in
the UK.
Some of the biggest shock was reserved for the idea of making
ISPs liable for copyright infringements carried out by their
subscribers. Yet that, too, is the case across the EU. If an ISP is
told about a customer's copyright infringement or defamatory
statement on pages it hosts, it must take action quickly otherwise
it will be liable for the infringement.
The devil, of course, is in the detail. If the proposal is to
make ISPs liable whether they know about illegal material or not,
that would be an alarming development. Of course we don't know
this, which is a flaw in the proceedings that critics are right to
point out.
Under the plans, we are told, ISPs will have the chance to win
back their immunity from liability if they behave in a certain way,
reportedly along the lines laid out in a previous US trade
agreement, this time directly with South Korea.
Again, though, that document describes a set-up that stops well
short of the doomsday scenarios played out in reports and on
blogs.
It says that countries should create "legal incentives for
service providers to cooperate with copyright owners in deterring
the unauthorized storage and transmission of copyrighted
materials".
According to reports, ACTA also provides that ISPs will have to
terminate subscribers "in appropriate circumstances". In the UK, a
copyright owner can force an ISP to disconnect a subscriber that
the ISP knows to be infringing content. The copyright owner has to
prove its case before a court, though – and at this time we don't
know that ACTA proposes anything less.
The legislation banning technologies that break content
encryption will also be bracingly familiar to UK residents. That,
too, is already outlawed here.
The scenarios outlined by protesters against ACTA are truly
worrying. But they are also not grounded in the few snippets we
have seen. Of course it is entirely possible that they are
contained in parts of the text that have not leaked.
When they bemoan the lack of transparency in negotiations,
ACTA's critics are entirely right. But the exaggerations, while a
perfect illustration of why the secrecy is dangerous, do not always
help the critics' case.
By Kim Walker, a partner with
Pinsent Masons, the law firm behind OUT-LAW.COM, who specialises in
intellectual property law.
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