Disagreements on Transparency Fail to Stop ACTA Treaty Leak

Disagreements between the European Union and the U.S. over whether to release the current negotiating text of a secretive international copyright treaty became moot this week, with the publication on a French website of a leaked version of the latest draft of the treaty.

The treaty will require some signatories to boost the level of protection afforded to copyright and trademark holders, including the introduction of criminal sanctions for those who indulge in counterfeiting or piracy on a commercial scale. It also sets rules for copyright protection in what E.U. negotiators call “the digital environment” — U.S. contributions to the negotiating text prefer the term “the Internet.”

The leaked document, dated July 1, is labeled as an “informal predecisional deliberative draft” of the Anti-Counterfeiting Trade Agreement (ACTA) reflecting changes made during negotiations held in Lucerne, Switzerland, late last month, according to its title page.

French advocacy group La Quadrature du Net posted the document, a collection of scanned images in PDF format, to its website on Wednesday, and immediately began transcribing it into a searchable text format in a Wiki.

In March, the same organization published an earlier version of the document, the result of the round of negotiations held in New Zealand last year.

The latest leaked text was published just hours after E.U. officials described disagreement between the negotiators over whether to release the text.

It indicates that, beyond their disagreements on transparency and terminology, other differences remain between the U.S. and E.U. negotiating positions.

It suggests that the E.U. wishes to exclude copyright infringement by consumers from the requirement for criminal sanctions, while the U.S. proposal is that signatory states “may” exclude it. The E.U. negotiators also want penalties for copyright infringement to be “fair and proportionate.”

The new text appears to retreat still further from the prospect of a global “three strikes” law requiring Internet service providers to spy on customers’ copyright infringements and cut them off after a number of warnings.

Article 2.18.3 (formerly 2.17.3) exempting Internet service providers from responsibility for their clients’ actions in certain circumstances now provides that “no party’s legislation may condition the limitations … on an obligation that the online service provider monitors its services or … actively or affirmatively seeks facts indicating that infringing activity is occurring.” The previous draft suggested somewhat more loosely that states may not impose a general obligation to monitor services on a daily basis for infringing activity.

Under the latest draft, rights holders will have to go to court to obtain the identities of Internet users from their ISPs. The earlier draft required only that rights holders provide notice of copyright infringement to the ISP in order to obtain the subscriber’s identity information.

The paragraphs of the treaty dealing with “effective technological measures” (often referred to as DRM, digital rights management) are the subject of fewer suggested modifications than before, suggesting that the parties may be nearing agreement on this section.

The next round of negotiations will take place in the U.S., with a further round scheduled before the end of the year. Other parties to the negotiations include Australia, Canada, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore and Switzerland.

Peter Sayer covers open source software, European intellectual property legislation and general technology breaking news for IDG News Service. Send comments and news tips to Peter at peter_sayer@idg.com.