Tech coalition criticizes ISP liability proposals in ACTA

A Canadian coalition of major Internet service providers (ISPs) and technology companies has criticized the copyright reform proposals in the Anti-Counterfeiting Trade Agreement (ACTA). The Business Coalition for Balanced Copyright (BCBC), whose membership includes Telus, Rogers Communications, Google, Yahoo, and the Retail Council of Canada, said secondary liability for copyright infringement, as proposed in the ACTA talks, would impede innovation. “Any notion of expanded secondary liability that could put at risk because of how somebody else uses their service is obviously going to act as an impediment to innovation and experimentation with new ways to deliver content and new forms of services,” Jay Kerr-Wilson, a lawyer in Ottawa with Fasken Martineau and a spokesman for the BCBC, told Canadian Business this month. Canada is one of a handful of countries taking part in the ACTA negotiations, along with the United States, the European Union, Switzerland, Japan, and a few other states. Negotiations surrounding the agreement have quietly taken place since 2007. Proposals within the Internet chapter of the ACTA, which have been leaked online, call for a “graduated response” system of ISP liability, in which Internet providers could be required to cut off Internet access for subscribers who allegedly commit a series of copyright infringements. Parties to the treaty talks are also proposing a “notice-and-takedown” system, in which ISPs would be required to remove or disable allegedly infringing material online. Kerr-Wilson said YouTube would not have been successful if such secondary liability rules were in place. “If you’re going to be facing significant litigation or potential awards of damages against you, you may just decide that launching the service isn’t worth it,” he said. Kerr-Wilson told the magazine that he does not believe large ISPs have the capacity to patrol Internet users for infringement. "The concern is there may be rules in place that simply wouldn't be … It may be technically possible to monitor user behavior on the Internet in an attempt to try and prevent peer-to-peer file sharing, but the impact on network performance would be enormous … From a network management point of view, it would be highly impractical and, from a privacy/customer service point of view, highly undesirable,” he said. Some parties to the ACTA also propose copyright laws modeled on the United States’ Digital Millennium Copyright Act (DMCA), including a provision that would make it an infringement of copyright to circumvent electronic copy-protection and access-control programs—known as digital rights management (DRM).

Tech coalition criticizes ISP liability proposals in ACTA

Brief | February 24, 2010

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