[p2p-research] Fwd: [fcf_discussion] ACTA chapter leaked + analysis

Mon Feb 22 05:16:06 CET 2010

---------- Forwarded message ----------
From: Alberto Barrionuevo <abarrio at ffii.org>
Date: Mon, Feb 22, 2010 at 7:44 AM
Subject: [fcf_discussion] ACTA chapter leaked + analysis
To: fcforum_discussion at list.fcforum.net

 From FFII internal lists:

First of all, during the next days be aware of:

http://search.twitter.com/search?q=%23acta

Now the appetizer with the leaked chapter at the end:

http://www.michaelgeist.ca/content/view/4808/125/

http://sites.google.com/site/actadigitalchapter/acta_digital_chapter.pdf?attredirects=0

First analysis of the ACTA Internet chapter, which seems to be the

latest version from the recent Mexico round of negotiations, here

http://www.boingboing.net/2010/02/21/acta-internet-enforc.html

and here

http://computerworld.co.nz/news.nsf/news/leaked-acta-draft-treaty-reveals-plans-for-internet-clampdown

ACTA will be discussed in the European Parliament's International Trade

(INTA) Committee on Tuesday, agenda topic

#8 "Anti-Counterfeiting Trade Agreement (ACTA) - Exchange of views with the
Commission"

Live stream will be available here:

<
http://www.europarl.europa.eu/wps-europarl-internet/frd/live/live-video?language=en
>

 The Chapter (cut & paste from the pdf, perhaps with the pagebreaks wrong):

-----------------------------------------------------------------------------------------

Article 2.17: Enforcement procedures in the digital environment

 1. Each Party shall ensure that enforcement procedures, to the extentset

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

infringement which takes place by means of the Internet, including

expeditious remedies to prevent infringement and remedies which

constitute a deterrent to further infringement.

 2. Without prejudice to the rights, limitations, exceptions or defenses

to copyright or related rights infringement available under its law,

including with respect to the issue of exhaustion of rights, each

Party confirms that civil remedies, as well as limitations,

exceptions, or defenses with respect to the application of such

remedies, are available in its legal system in cases of third party

liability1 for copyright and related rights infringement.2

 3. Each Party recognize that some persons3 use the services of third

parties, including online service providers,4 for engaging in

copyright or related rights infringement. Each Party also recognizes

that legal uncertainty with respect to application of intellectual

property rights, limitations, exceptions, and defenses in the

digital environment may present barriers to the economic growth of,

and opportunities in, electronic commerce. Accordingly, in order to

facilitate the continued development of an industry engaged in

providing information services online while also ensuring that

measures take adequate and effective action against copyright or

related rights infringement are available and reasonable, each Party

shall:

provide limitations5 on the scope of civil remedies available against an
online

 (a) service provider for infringing activities that occur by:

 (I) automatic technical processes and

 (II) the actions of the provider's users

that are not directed or initiated by

that provider when the provider does

not select the material, and

 (III) the provider referring or linking users to

an online location when, in cases of

subparagraphs (II) and (III), the

provider does not have actual knowledge

of the infringement and is not aware of

the facts or circumstances from which

infringing activity is apparent; and

 (b) condition the applicantion of the provisions of subparagraph (a) on
meeting

the following requirements:

 (I) an online service provider adopting and

reasonably implementing a

----------------------------------------------------------------------------

1 For greater certainty, the Parties understand that third party liability

means liability for any person who authorizes for a direct financial

benefit, induces through or by conduct directed to promoting infringement,

or knowingly and materially aids, any act of copyright or related rights

infringement by another. Further, the parties also understand that the

application of third party liability may include consideration of

exceptions or limitations to exclusive rights that are confined to certain

special cases that do not conflict with a normal exploitation of the work,

performance or phonogram, and do not unreasonably prejudice the legitimate

interests of the right holder, including fair use, fair dealing, or their

equivalents.

2 Negotiator's Note: This provision is intended to be moved and located in
the civil enforcement section.

3 For purposes of this Article, person means a natural person or an
enterprise.

4 For purposes of this Article, online service provider and provider mean a

provider of online services or network access, or the operators of

facilities therefor, and includes an entity offering the transmission,

routing, or providing of connections for digital online communications,

between or among points specified by a user, of material of the user's

choosing, without modification of the content of the material as sent or

received.

5 For greater certainty, the Parties understand that the failure of an

online service provider's conduct to qualify for a limitation of liability

under its measures implementing this provision shall not bear adversely on

the consideration of a defense of the service provider that the service

provider's conduct is not infringing or any other defense.

-------------------------------------------------------------------------------------------

 policy6 to address the unauthorized storage or transmission of

materials protected by copyright or related rights except that no

Party may condition the limitations in subparagraph (a) on the

online service provider's monitoring its services or affirmatively

seeking facts indicating that infringing activity is occurring; and

 (II) an online service provider

expeditiously removing or disabling access to material or activity,

upon receipt of legally sufficient notice of alleged infringement,

and in the absence of a legally sufficient response from the

relevant subscriber of the online service provider indicating that

the notice was the result of a mistake or misidentification.

except that the provisions of (II) shall not be applied to the

extent that the online service provider is acting solely as a

conduit for transmissions through its system or network.

 4. In implementing Article 11 of the WIPO Copyright Treaty and Article

18 of the WIPO Performances and Phonograms Treaty regarding adequate legal

protection and effective legal remedies against the circumvention of

effective technological measures that are used by authors, performers or

producers of phonograms in connection with the exercise of their rights and

that restrict unauthorized acts in respect of their works, performances, and

phonograms, each Party shall provide civil remedies, as well as criminal

penalties in appropriate cases of willful conduct that apply to:

 (a) the unauthorized circumvention of an effective technological

measure7 that controls access to a protected work, performance, or

phonogram; and

 (b) the manufacture, importation, or circulation of a technology,

service, device, product, component, or part thereof, that is:

marketed or primarily designed or produced for the purpose of

circumventing an effective technological measure; or that has only

a limited commercially significant purpose or use other than

circumventing an effective technological measure.

 5. Each Party shall provide that a violation of a measure implementing

paragraph (4) is a separate civil or criminal offense, independent of any

infringement of copyright or related rights.8 Further, each Party may adopt

exceptions and limitations to measures implementing subparagraph (4) so long

as they do not significantly impair the adequacy of legal protection of

those measures or the effectiveness of legal remedies for violations of

those measures.9

6. In implementing Article 12 of the WIPO Copyright Treaty and Article

19 of the WIPO Performances and Phonograms Treaty on providing adequate and

effective legal remedies to protect rights management information, each

Party shall provide for civil remedies, as well as criminal penalties in

appropriate cases of willful conduct, that apply to any person performing

any of the following acts knowing that it will induce, enable, facilitate,

or conceal an infringement of any copyright or related right:

-----------------------------------------------------------------------------

6 An example of such a policy is providing for the termination in

appropriate circumstances of subscriptions and

accounts in the service provider's system or network of repeat

infringers.

7 For the purposes of this Article, effective technological measure means

any technology, device, or component that, in the normal course of its

operation, controls access to a protected work, performance, phonogram, or

protects any copyright or any rights related to copyright.

 8 The obligations in paragraphs (4) and (5) are without prejudice to the

rights, limitations, exceptions, or defenses to copyright or related

rights infringement. Further, in implementing paragraph (4), no Party may

require that the design of, or the design and selection of parts and

components for, a consumer electronics, telecommunications, or computing

product provide for a response to any particular technological measure,

so long as the product does not otherwise violate any measures

implementing paragraph (4).

 9 Negotiator's Note: This provision is subject to broader government

action/sovereign immunity provision elsewhere in the Agreement.

 (a) to remove or alter any rights management information10 without

authority; and

 (b) to distribute, import for distribution, broadcast, communicate,

or make available to the public, copies of the works, performances,

or phonograms, knowing that rights management information has been

removed or altered without authority.

--------------------------------------------------------------------------------

7. Each Party may adopt appropriate limitations or exceptions to the

requirements of subparagraphs (a) and (b) of paragraph (6).

-----------------------------------------------------------------------------

10 For the purposes of this Article, rights management information means:

 (a) information that identifies a work, performance, or phonogram; the

author of the work, the performer of the performance, or the producer of

the phonogram; or the owner of any right in the work, performance, or

phonogram;

 (b) information about the terms and conditions of the use of the work,

performance, or phonogram; or

 (c) any numbers or codes that represent such information. When any of

these items is attached to a copy of the work, performance, or phonogram

or appears in connection with the communication or making available of a

work, performance, or phonogram to the public.

-- 

Alberto Barrionuevo, FFII

Iberoamerican and Open Standards WGs

www.ffii.org / ffii.org.es

"In July 2005, after several failed attempts to legalise software patents in
Europe, the patent establishment changed its strategy. Instead of
explicitely seeking to sanction the patentabilitty of software, they are now
seeking to create a central European patent court, which would establish and
enforce patentability rules in their favor, without any possibility of
correction by competing courts or democratically elected legislators."

-- http://eupat.ffii.org/

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