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US defied as secret copyright treaty draft leaked

'Three strikes' rule disappears from proposal

Another round of negotiations, another leak: Knowledge Ecology International (KEI) published what it says is the latest draft of the secret Anti-Counterfeit Trade Agreement (ACTA) over the weekend.

In its latest draft, ACTA appears to have gained a preamble in which the parties to the treaty set out broad principles including their desire "to address the problem of copyright or related rights infringement which takes place by means of digital networks in a manner that balances the rights of the relevant right holders, online service providers and users of those networks".

However, a footnote then warns that negotiators will modify this worthy paragraph to ensure it conforms to the text agreed for Article 2.18, Enforcement in the Digital Environment, rather than the other way around.

The text published by KEI, dated Aug. 25, purports to be the negotiating draft of the copyright treaty agreed to behind closed doors at a series of meetings held in Washington, D.C., last month.

Drafts of the treaty have leaked out after most of the negotiating rounds, despite US insistence that the text remain under wraps until it is finished. Most of the other parties to the treaty have been pushing for more openness. Other parties to the negotiations include Australia, Canada, the European Union, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore and Switzerland.

Initial concern about the treaty text revolved around requirements that signatories introduce a so-called "three-strikes" system for identifying, warning and ultimately disconnecting internet subscribers accused by rights holders of illegal file-sharing. The leaks show that proposal has disappeared from the treaty but the language that replaces it is still one of the most hotly disputed parts of the text: Article 2.18.

This article no longer requires online service providers to monitor their customers' activity in order to escape liability for copyright infringement by their customers, and only suggests that signatory states "may" give competent authorities the power to order online service providers to identify subscribers accused by rights holders of infringing copyright.

The countries have battled over how to protect the rights of "rights holders" without agreeing who they are talking about: one footnote warns that the "Right holder definition must be clarified".

Another definition still up for grabs is what exactly are "effective technical measures" - often referred to as DRM (digital rights management). All agree to "provide adequate legal protection and effective legal remedies" against their circumvention.

However, the EU, Japan and New Zealand say only that the term should cover "copy controls", leaving the detail for individual countries to decide for themselves. Others, including the US, Australia and South Korea, favour a tighter definition of an effective technical measure as a "technology, device or component that, in the normal course of its operation, controls access to a protected work, phonogram, or protects any copyright". Most countries are willing to provide an exemption, in this clause, for circumventing DRM that serves only to limit the geographic playback of material, such as the region code on DVDs.

The document published by KEI is still full of brackets and braces denoting unsettled business, so negotiators taking part in the next round of talks in Tokyo later this month, will have plenty to do.


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