The U.S., Canada and other European countries are secretly drawing up rules designed to crack down on copyright abuse on the Internet, in part by making ISPs liable for illegal content, according to a copy of part of the confidential draft agreement that was seen by the IDG News Service.
It is the latest in a series of leaks from the anticounterfeiting trade agreement (ACTA) talks that have been going on for the past two years. Other leaks over the past three months have consisted of confidential internal memos about the negotiations between European lawmakers.
The chapter on the Internet from the draft treaty was shown to the IDG News Service by a source close to people directly involved in the talks, who asked to remain anonymous. Although it was drawn up last October, it is the most recent negotiating text available, according to the source.
It proposes making ISPs (Internet service providers) liable under civil law for the content their subscribers upload or download using their networks.
To avoid being sued by a record company or Hollywood studio for illegally distributing copyright-protected content, the ISP would have to prove that it took action to prevent the copyright abuse, according to the text, and in a footnote gives an example of the sort of policy ISPs would need to adopt to avoid being sued by content owners:
“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 offenders,” the text states.
Terminating someone’s subscription is the graduated response enacted in France last year that sparked widespread controversy. The French law is dubbed the “Three Strikes” law because French ISPs must give repeat file sharers two warnings before cutting off their connection.
Such a system is described as a “notice and takedown” method of enforcing copyright law. Canada currently practices a “notice and notice” system and would have to change its laws to abide by the treaty, writes University of Ottawa Internet law expert Michael Geist.
“ACTA would trump domestic law and the current Canadian business practices,” Geist writes in his blog.
Other countries in Europe are considering similar legal measures to crack down on illegal file-sharing. However, E.U.-wide laws waive ISPs’ liability for the content of messages and files distributed over their networks.
European Commission officials involved in negotiating ACTA on behalf of the E.U. insist that the text being discussed doesn’t contradict existing E.U. laws.
“There is flexibility in the European system. Some countries apply judicial solutions (to the problem of illegal file-sharing), others find technical solutions,” said an official on condition he wasn’t named.
He said the E.U. doesn’t want to make a “three strikes” rule obligatory through the ACTA treaty. “Graduated response is one of many methods of dealing with the problem of illegal file-sharing,” he said.
He also admitted that some in the Commission are uncomfortable about the lack of transparency in the ACTA negotiations.
“The fact that the text is not public creates suspicion. We are discussing internally whether the negotiating documents should be released,” he said, but added that even if it was agreed in Brussels that the documents should be made public, such a move would require the approval of the E.U.’s 10 ACTA negotiating partners.
The participating countries are the U.S., the E.U., Canada, Mexico, Australia, New Zealand, South Korea, Singapore, Jordan, Morocco and the United Arab Emirates.
The Canadian government held public consultations last summer to poll citizens on opinions relating to copyright in the digital age. The Ministries that conducted the talks are yet to produce a document related to the process or announce plans to modify Canada’s Copyright Act based on those talks.
In a separate leak that first appeared on blogs last week, the European Commission updated members of the European Parliament on the most recent face-to-face meeting between the signatory countries, which took place in Mexico at the end of last month.
According to that leak, the Internet chapter of the treaty was discussed, but no changes to the position suggested by the U.S. last fall were agreed.
“The internet chapter was discussed for the first time on the basis of comments provided by most parties to US proposal. The second half of the text (technological protection measures) was not discussed due to lack of time,” the memo said, adding:
“Discussions still focus on clarification of different technical concepts, therefore, there was not much progress in terms of common text. The U.S. and the E.U. agreed to make presentations of their own systems at the next round, to clarify issues.”
The Commission official refused to comment on the content of the leaked documents.
The next meeting of ACTA negotiators will take place in New Zealand in April.