Internet Industry Association

Consistent with our calls for greater transparency over the past 12 months, the Internet Industry Association is pleased that after the 8th  round of negotiations, countries negotiating the Anti-Counterfeiting Trade Agreement (ACTA) including Australia have made public the provisional text.

While the text has been cleared with alternative or non-agreed texts in squared brackets, the IIA is disappointed that the names of the countries proposing or opposing options are not available as in the previous leaks.

That said, the text makes clear that, contrary to public assertions by the negotiating parties, the option of "3-strikes" and ISP's required to divulge consumer date without legal oversight remains on the table. As well there are moves to criminalise infringements that are currently subject only to civil penalties. Moreover there seems to be no agreement at this stage about whether penalties should be fair and proportionate.

In particular:

 Article 2.14 Criminal Enforcement

 1. Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. Willful copyright or related rights piracy on a commercial scale includes:

[(a) significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and (at  p.15)

This provision could mean that under Australian law, civil infringements of copyright may be open to criminal charges, even if there was no financial benefit.

ARTICLE 2.18 [ENFORCEMENT PROCEDURES IN THE DIGITAL ENVIRONMENT] 

1. Each Party shall ensure that enforcement procedures, to the extent set forth in the civil and criminal enforcement sections of this Agreement, are available under its law so as to permit effective action against an act of [trademark, copyright or related 

rights][intellectual property rights] infringement which takes place [by means of the Internet][in the digital environment] , including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.

2. [Those measures, procedures and remedies shall also be fair and proportionate.] (at p.18)

This suggests that ACTA parties remain divided about whether enforcement procedures should "also be fair and proportionate."

Option 2:

[Paragraph 3(a) shall not affect the possibility for a judicial or administrative authority, in accordance with the Parties legal system, requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility of the parties establishing procedures governing the removal or disabling of access to information

 The Parties shall not impose a general monitoring requirement on providers when acting in accordance with this paragraph 3.]

 [ 3 ter. Each Party shall enable right holders, who have given effective notification to an online service provider of materials that they claim with valid reasons to be infringing their copyright or related rights, to expeditiously obtain from that provider information on the identity of the relevant subscriber.  (at p.21)

The IIA applauds that the text expressly prohibits monitoring requirements for enforcement. However it also suggests that ACTA may force ISPs to provide user information to rights holders without judicial oversight.

NOTE: We have had the text less than 24 hours so this is necessarily a preliminary view. The IIA will be consulting with members and other stakeholders in coming weeks to determine a consolidated industry response prior to the next round of talks in June.