Toned-Down ACTA Said to Leave Copyright Uncertainties
STANFORD, Calif. -- Major question marks hang over the nearly completed Anti-Counterfeiting Trade Agreement (ACTA), said Director Richard Owens of the World Intellectual Property Organization’s copyright law division. One is whether it’s enforceable by “fiat” of the chief executives of the 38 participating developed countries without legislative ratification, and another is the “precedential value” in promoting compliance, including by the many nonparticipants, he said last week at a Stanford Law School conference.
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Owens called the ACTA participants “this club, this gated community,” but he also said it’s “entirely understandable that these countries are engaged in a separate path,” because WIPO has been moving very slowly and “it’s really, really hard when you have 184 countries … to obtain agreement or even consensus.” The “multilateral process” of an organization like WIPO “is demonstrably slow,” agreed James Pooley, WIPO deputy director for innovation and technology, “perhaps too slow” for copyright owners.
WIPO’s Advisory Committee on Enforcement meets for the sixth time Dec. 1 and 2, and its mandate remains under sharp debate, Owens said. It’s “a long way from enforcement standards” or even agreement that they should be created, he said. On the other hand, work in WIPO’s cultural and creative industries section to quantify the contributions of copyright businesses to economies, and the costs of infringement to local culture, is “enormously popular in developing countries,” not being pushed by “enforcement heavies,” Owens said.
"Speed is not always necessarily a virtue” when some players are concerned “about not knowing the future, not wanting to take that leap” to create new rules in anticipation of it,” said Fred von Lohmann, senior copyright counsel at Google and formerly of the Electronic Frontier Foundation. Although bullets were dodged with the elimination of undesirable proposals from ACTA, the way the agreement was reached behind closed doors sets a troubling example and leaves open important questions, including about secondary liability, he said.
Von Lohmann said he expects copyright owners to make a new push for stronger enforcement through the Trans-Pacific Partnership agreement, and the U.S. Trade Representative has expressed interest. ACTA will provide a rallying point for the “stronger digital provision” that copyright owners would have liked and that may be easier to achieve in 10 years, as “more countries come to see” infringement as a threat to their economies and cultures, Mitchell Silverberg & Knupp’s Steven Metalitz, counsel to the International Intellectual Property Alliance of copyright holders said.
Von Lohmann said he’s troubled by the possibility that signing countries must allow injunctions against third parties, which could include ISPs and online service providers, and a provision that the countries must make “aiding and abetting” violations a crime. The criminal provision is broader than civil secondary liability and lacks the body of interpretation by judges that has grown up around the civil doctrine, von Lohmann said. “It is not far-fetched at all” to worry about criminal cases against Internet companies after seeing Italy prosecute Google executives over posted videos, he said. A provision for statutory civil damages is worrisome, and limited criminal prosecutions to infringers on a commercial scale may not protect noncommercial file-sharers, von Lohmann said.