The new Anti-Counterfeiting Trade Agreement is... problematic

The inter­net chap­ter of the Anti-​​Counterfeiting Trade Agreement, a secret copy­right treaty whose text Obama’s admin­is­tra­tion refused to dis­close due to “national secu­rity” con­cerns, has leaked. It’s bad.

Secret copy­right treaty leaks. Its bad. Very bad. — Boing Boing.

Michael Geist has more:

Despite the efforts to com­bat leaks, infor­ma­tion on the Internet chap­ter has begun to emerge (just as they did with the other ele­ments of the treaty).

The ACTA Internet Chapter: Putting the Pieces Together.

He adds that the draft text is mod­eled on the U.S.-South Korea free trade agree­ment, and focuses on five issues:

1. Baseline oblig­a­tions inspired by Article 41 of the TRIPs which focuses on the enforce­ment of intel­lec­tual prop­erty.
2. A require­ment to estab­lish third-​​party lia­bil­ity for copy­right infringe­ment.
3. Restrictions on lim­i­ta­tions to 3rd party lia­bil­ity (ie. lim­ited safe har­bour rules for ISPs).
4. Anti-​​circumvention leg­is­la­tion that estab­lishes a WIPO+ model by adopt­ing both the WIPO Internet Treaties and the lan­guage cur­rently found in U.S. free trade agree­ments that go beyond the WIPO treaty require­ments.
5. Rights Management pro­vi­sions, also mod­eled on U.S. free trade treaty language.

For me, one key prob­lem area is that #4 in Geist’s list appar­ently elim­i­nates the fair use/​fair deal­ing excep­tion to anti-​​circumvention pro­vi­sions (reverse engi­neer­ing, com­puter test­ing, pri­vacy, etc.). Fair use is absolutely key to a proper bal­ance between allow­ing reuse that encour­ages new inno­va­tion and reward­ing exist­ing inno­va­tion through tem­po­rary monopolies.

Geist points out, too, that the treaty does not stop there. It con­tains addi­tional pro­vi­sions “that include statu­tory dam­ages, search and seizure pow­ers for bor­der guards, anti-​​camcording rules, and [require­ments for] manda­tory dis­clo­sure of per­sonal information.”

This is not a direc­tion that I sup­port, because I think it actu­ally lim­its inno­va­tion and devel­op­ment, rather than sup­port­ing them.