ISPs off the hook in latest ACTA draft

Canadian Internet service providers (ISPs) are relieved the international Anti-Counterfeiting Trade Agreement (ACTA) no longer implicates ISPs when users infringe copyright. But since ACTA is still being negotiated and Canada’s domestic copyright rules are in flux, ISPs may not be completely clear of this issue just yet. In development since 2007, ACTA aims to create international standards for intellectual property rights enforcement through a trade agreement. Participants include Canada, Australia, the European Union, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States. A draft of the agreement leaked earlier this year included “secondary liability” or “third party liability” provisions—intended hold liable those that contribute to copyright infringement—but there was some concern it could have implications for ISPs. Some parties to the agreement had also put forward a “notice and takedown” system of liability, in which ISPs would be required to remove or disable allegedly infringing material online. (Canada has steered clear of that model, instead proposing a “notice and notice” system). Both of those provisions have been removed from the latest ACTA draft, dated Aug. 25, suggesting one of their foremost proponents, the United States, has backed down. The latest text of the agreement instead uses looser, conceptual language, proposing some form of ISP liability in the digital environment—and an option for ISPs to hand over subscriber information—but the new draft gives ISPs much more flexibility. It appears to be compatible with the Canadian notice-and-notice system, in which rights holders notify ISPs of alleged violations on their networks, and ISPs forward the notice to the alleged copyright infringer. Michael Geist, Canada research chair in Internet and e-commerce law at the University of Ottawa, noted the change on his blog in a post on Sept. 6. “The secondary liability provisions that focused on ISP liability have been dropped entirely,” Geist wrote. “Instead, the chapter requires countries to promote cooperative efforts with the business community to address infringement and says that countries may provide that authorities have the power to order ISPs to disclose subscriber information. Note that the disclosure power is not a requirement but rather something a country ‘may’ do.” Tom Copeland, chair of the Canadian Association of Internet Providers (CAIP) and president of the ISP Eagle.ca, said the revised ACTA text is good news for Internet providers. “We’ve been of the mind forever that ISPs are effectively common carriers, in that no liability should accrue to carriers for the activity of their customers while they’re online, subject to certain common sense co-operation with law enforcement around criminal activity,” he said. Beyond a practical level of co-operation with law enforcement, “we neither can practically know what our customers are doing online, nor should we,” Copeland said. But ACTA is still in the works, and there are no guarantees that the issue of ISP liability is gone for good. Geist said in an interview that despite the new ACTA draft, ISPs should pay attention to the agreement’s development. “Even with secondary liability changed, there are still a number of provisions that talk about what telecom operators might be required to do in terms of taking steps for the activities on their networks,” he said. “That raises privacy concerns. It raises commercial concerns.” Canada’s federal government is in the process of amending domestic copyright rules via Bill C-32, the Copyright Modernization Act, introduced in June to bring Canadian copyright rules in line with the Internet treaties of the World Intellectual Property Organization (WIPO), which Canada signed in 1997. Earlier this year, Industry Minister Tony Clement said Canada’s domestic laws would take precedence over the international ACTA treaty. But Russell McOrmond, technology consultant and host of the Digital Copyright Canada forum, said in an interview that he is skeptical. “The way you implement treaties is you change the domestic law, and once the domestic law matches what the treaty requires, you then ratify the treaty,” he said, explaining that if Canada wants to support ACTA, it would have to adjust its domestic law accordingly. But no one is forcing Canada to sign onto ACTA, Barry Sookman, a partner with McCarthy Tétrault in Toronto, said in an interview. “If Canada doesn’t sign the treaty, it can do whatever it wants irrespective of what ACTA says,” he said. Geist said Canada will probably want to sign ACTA given the trading partners involved. “I think given the government’s approach to strengthening its ties with the United States and maintain strong relationships, it would be pretty hard for Canada to step away from ACTA.” Canada’s domestic and international copyright policies seem to be progressing side by side. Bill C-32 has passed first reading in the House of Commons and the government is expected to send the bill to a special legislative committee for study this fall. On Thursday, ACTA delegates are scheduled to meet for another round. Gathering in Tokyo, Japan, they will meet from Sept. 23 to Oct. 1 to develop the agreement's final draft. The ACTA process has been criticized for lack of transparency. Although participants released a draft of the agreement in April, critics have pointed out that most information has come out through leaks to organizations such as Knowledge Economy International and La Quadrature du Net, which have posted them online. Last week, the European Parliament produced a written declaration calling on the ACTA parties to make all negotiation documents public. “ACTA has been a joke,” NDP MP and heritage and digital affairs critic Charlie Angus, who has been following the process, said in an interview. “These guys are sneaking around in back rooms negotiating international treaties of profound significance. When the WIPO were being negotiated, there were NGOs, there were public papers being presented.” Sookman said the ACTA parties are trying to make the process more transparent. “Parties have said publicly, in their last communiqué, that after the meeting that’s going to take place in September, when they’ll finalize the draft, the draft is going to be made public,” Sookman said. Copeland said the ACTA negotiations are more transparent, but more can be done. “I think what we also need to see is transparency during the negotiations—transparency from our foreign affairs and trade folks in what they are going to be negotiating, and what’s on the table instead of finding out after the fact.” news@thewirereport.ca

ISPs off the hook in latest ACTA draft

News | September 22, 2010

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