New version of copyright pact gets mixed reviews

A near-final version of the international Anti-Counterfeiting Trade Agreement (ACTA) released this week won praise from organizations representing copyright holders and some sighs of relief from groups that had opposed proposals in earlier drafts.

Still, concerns about the copyright-enforcement trade pact remain, said some groups critical of language in earlier, leaked versions of ACTA. The proposed trade agreement has been improved, with Internet service providers no longer on the hook for the copyright infringement of their customers, said the Computer and Communications Industry Association (CCIA), a tech trade group. 

The new version also took out “unclear” language about what kinds of circumventions to digital-rights-management technologies are allowed, the CCIA said.

However, much of the language in ACTA remains “broad,” and the new text adds trademark enforcement where none existed before, said Heather Greenfield, a CCIA spokeswoman.

In many of the nations negotiating ACTA, fair use exemptions to copyright law aren’t recognized, added Ed Black, CCIA’s president and CEO. 

“As a result, should ACTA increase intellectual property protections without fair-use-like safeguards that allow legitimate businesses to operate, it would expose U.S. Internet and technology companies to liability in foreign courts for things that are perfectly legal here,” he said in a statement. “Tech and industries that depend on fair use and other copyright exceptions have a significant role to play in boosting the economy.”

The Business Software Alliance (BSA), a trade group representing large software vendors, and the U.S. Chamber of Commerce both voiced support for the new version of ACTA, even though some commentators called its copyright protections watered down from earlier versions. 

The latest version is “less specific” than earlier drafts in some areas, but the proposed agreement makes an important statement that software piracy is a criminal offense, said Jesse Feder, BSA’s director of international trade and intellectual property. 

“The fact that these 37 countries … have been able to get together and come to agreement on a document that starts off by saying effective enforcement of IP [intellectual property] is critical to economic growth is a very positive thing,” Feder said.

It doesn’t appear that the U.S. Congress will need to make any changes to existing law to comply with ACTA, Feder said. President Barack Obama’s administration could approve the agreement by executive order, although other countries may need to strengthen their IP laws, he said.

The Recording Industry Association of America also praised the new version of ACTA. “While ACTA does not provide all of the answers about how governments will move forward to tackle online piracy, it is a very important multilateral statement concerning the importance of finding solutions to online theft,” Neil Turkwitz, the RIAA’s executive vice president for international affairs, said in a statement. “It may not be a precise roadmap, but it is a powerful expression of a common vision and unity of purpose.”

Public Knowledge, a digital rights group that has been critical of ACTA and the secret negotiations surrounding the deal, called the new version a “qualified victory for those who want to protect the digital rights of consumers around the world.”

Negotiators have removed some of the “most egregious” provisions from earlier drafts, including legal liability for ISPs and search engines, said Gigi Sohn, president of Public Knowledge. The new version also gives signatory nations more flexibility than earlier versions, she said.

Still, the secret negotiations, with little information released during the first three years of talks, made for a “deeply flawed” process, Sohn said. 

Public Knowledge and the Electronic Frontier Foundation filed a lawsuit against the Office of the U.S. Trade Representative (USTR) in September 2008 in an effort to get more information about the proposed agreement. After a series of leaks, negotiators released the first official version of the proposal in April.

“The inclusiveness [of negotiations] was not arrived at easily, nor was it ever complete,” Sohn said. “USTR had to be taken to court and taken to task in the court of public opinion for months before agreeing to allow other than the privileged industry representatives to be part of the agreement’s development. The fact that several national legislatures around the world rejected both the process and the substance of the agreement is an indication of the dissatisfaction not only here in the U.S. but in many other nations.”

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant’s e-mail address is [email protected].

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