Latest ACTA Draft An Improvement, But Does Not Fix Disharmony In International Laws On Copyright Limitations And Exceptions: CCIA

BY CCIA Staff
September 8, 2010

The European Parliament has adopted a resolution today that shows the Anti-Counterfeiting Trade Agreement may face an uphill battle getting approval in Europe. Written Declaration 12 denounces the secrecy of the international agreement that aims to increase intellectual property enforcement and also warns that the proposed agreement could harm fundamental freedoms and the ecosystem of the Internet.

The European Parliament approved the resolution Wednesday after discussing the latest leaked draft of ACTA. The latest draft would not hold Internet Access Providers and other tech companies legally liable for copyright violations committed by users of their services. ACTA also faces growing opposition in the United States. The next round of negotiations is scheduled for later this month in Tokyo.

ACTA comes in response to a push from intellectual property rights holders seeking stricter, more uniform IP enforcement worldwide.  While tech companies also seek more uniform protections for their services and applications across borders, the problems faced by innovative companies providing beneficial services have been largely overlooked by early drafts of ACTA.

Exceptions to copyright law such as “fair use,” largely do not exist in the countries negotiating ACTA.  As a result, should ACTA increase intellectual property protections without fair-use-like safeguards that allow legitimate businesses to operate, it may expose Internet and technology companies to excessive liability in foreign courts. The Computer & Communications Industry Association remains concerned that even though the latest leaked draft of ACTA represents an improvement, it would perpetuate the disharmony among nations when it comes to proper limitations and exceptions to copyright law.

The following comments can be attributed to Erika Mann, who served as a member of the European Parliament until 2009 and is now Vice President of CCIA, based in CCIA’s new Brussels office:

“ACTA would hurt the economy in countries which don’t have a balanced intellectual property rights system in place. A future Google would have a hard time starting up in a country without a balanced copyright system.

“The decision to remove ISP liability (or “third party” liability) from ACTA was a prudent one, which will promote growth in Internet commerce.  Creating broad new categories of liability for legitimate businesses not engaged in piracy was never an appropriate subject for an IP enforcement agreement.

“The recognition in the latest drafts that remedies and penalties must be proportional to the injury – and many Parties’ support for a recognition of the rights of third parties – indicates an understanding among negotiators that electronic commerce may be hindered if enforcement mechanisms are not properly tailored.

“Unfortunately, the agreement’s proposed language addressing “anti-circumvention” – the legal protection accorded to ‘digital rights management’ (DRM) technology – have taken a turn for the worse, highlighting the general lack of limitations and exceptions in the agreement.

The following comments can be attributed to CCIA President & CEO Ed Black:

“ACTA continues to suffer from a fundamental conceptual flaw: the agreement’s ‘enforcement approach’ responds to perceived – and in some cases legitimate – concerns about inadequate IP enforcement in the global economy.  In attempting to remedy this situation, however, ACTA threatens to exacerbate existing disharmony among the various copyright limitations and exceptions that Internet and technology companies depend upon.  Harmonizing rights and increasing IP enforcement without providing the similar robust protection to Internet and technology businesses will have detrimental economic consequences.

“To promote growth and job production around e-commerce, the nations negotiating ACTA should resolve the patchwork quilt of inconsistent IP restrictions that regulates what products and services Internet and technology companies may offer across the global e-commerce marketplace.”

 

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