Terms of ACTA draft agreement to be revealed, EU promises no 'three strikes'

In a news release today from Wellington, New Zealand, the site of the latest round of worldwide negotiations over terms for the Anti-Counterfeiting Trade Agreement (ACTA), the European Union announced it has gotten its wish: Negotiators have unanimously agreed to reveal the terms of their latest draft to the general public, not necessarily for comments but certainly for general inspection, in an official release next Wednesday.

That draft, the EU said, should contain no trace of a controversial provision compelling governments to impose "three strikes" legislation (also known as graduated response) for accused intellectual property infringers, similar to legislation still being tried in France even after courts there declared them unconstitutional.

The EU, at least, believes the current draft respects the terms of the 1994 Marrakesh agreement of Trade-Related Aspects of Intellectual Property Rights (called TRIPS, even though the acronym could just as easily be "TRAPS"), which is one of the founding documents of the World Trade Organization. The TRIPS agreement, among other things, allows member nations to exclude from patentability such things as surgical methods and biological processes; though it does allow nations to permit patents on other processes -- a permission which has always been assumed to include mathematical processes as well.

"There is no proposal to oblige ACTA participants to require border authorities to search travellers' baggage or their personal electronic devices for infringing materials," reads today's announcement. "In addition, ACTA will not address the cross-border transit of legitimate generic medicines."

But there's no mention today of another of the agreement's more controversial negotiating topics: a provision believed to have been proposed by US negotiators that would compel nations to limit the imposition of "safe harbor" from liability for copyright infringement, to ISPs that have taken proactive measures to thwart such infringement.

US copyright law refers to the state of affairs when an independent party, perhaps inadvertently, causes copyright infringement to take place, as secondary liability. The provision the US is believed to have proposed would compel many nations, including the United States itself, to modify or completely overhaul their existing laws. As Electronic Frontier Foundation International Director Gwen Hinze pointed out last January, New Zealand would be one of those countries. There, Hinze wrote, "Intermediary liability exists only where intermediaries are found to authorize specific infringing activity.

"Requiring other countries to harmonize with the US secondary liability standards via ACTA is dangerous for several reasons. First, it would change the existing relationships and balance of power between content providers, intermediaries and their users, with unpredictable consequences for citizens' access to knowledge and Innovation policy. Second, it overrides other countries' national sovereignty and the public policies reflected in their national liability standards," Hinze continued. "Third, it will reduce flexibility and harm the ongoing development of these concepts in both the US, and in other countries."

Opponents of changes to safe harbor provisions, the EU among them, may look to the fact that New Zealand is the host country for this round of negotiations, for a hopeful sign that the purported US delegation proposal may have been rejected. The negotiating stances of individual member nations will not be revealed next Wednesday, the EU press statement noted, although the EU's position on several matters has already been made crystal clear.

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