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So, I'm curious about ACTA. Does anyone have any literature that does a detailed analysis of the impact of this thing? I've read this (which is a bit too general and doesn't argue so much as it asserts - but I can accept that it's that way because it's an overview).
I've read the ACTA text (fairly quickly, though) and I haven't seen anything that would add to what we already have under existing law. It's classic international law, worded extremely broadly, leaving countries to impose individual legislation. Theoretically open to abuse (as always), but - countries already have the ability to pass such legislation. Given the Megaupload saga, I'm pretty sure that countries will be rushing to put such local laws in place, ACTA or no.
The issue I have against SOPA is that it purports to bypass due process by allowing shutting down of websites and suchlike without having to obtain a court order. The issue with this is that people can apply to the government can shut down whosoever they like on a suspicion, without adequate proof - and even if the shutdown is later reversed, the damage is done. The fact that SOPA can target websites that are for legitimate uses makes this worse.
As against that, I do believe in protecting the rights of copyright holders, because from a purely practical perspective, some copyright holders out there may do things for free, but a vast majority don't. For them, it's a living. If there is no economic incentive for copyright holders to produce works because they're losing all that income to piracy, we end up with no works. No anime, no books, no music, no movies. Not ideal. (Besides, I'm sure we've all gotten riled up about plagiarism of our works before, even if those works are non-profit. Oh, the bitchfests of yesteryear). - As a rights holder, I want to be able to write to a service provider to tell them to take down a plagiarised copy of my work, where the offender in question won't take it down himself.
It's a fine balancing game, and what I've seen in the ACTA text is an attempt to meet that balance (I can't comment on how good the attempt is, which is precisely the problem):
Article 27.2
Further to paragraph 1, each Party’s enforcement procedures shall apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy. [FN13] (Emphasis added).
FN13: For instance, without prejudice to a Party’s law, adopting or maintaining a regime providing for limitations on the liability of, or on the remedies available against, online service providers while preserving the legitimate interests of right holder. (Emphasis added).
I can see how this can be abused. I can also see how it can be beneficial - right now, the policing of copyright in international spheres and the digital sphere is a big... uncertain ... thing. The Napster case in the US could be easily replicated in my jurisdiction, and the problem for service providers is that they don't know what's legal or not.
Asking countries to define legality is not, of itself, an evil - if it helps to clarify what the boundaries of legality are by setting out specific, useful safe harbours for an online service provider to fall within. This can actually help service providers. Of course, there is always the possibility that a country may make those safe harbours unuseable or too narrow, but ACTA in and of itself does not purport to define those safe harbours or to set limits on them. (And it does actually highlight that there should be safe harbours, which means that signatories would have to make an attempt to address this, however half-assed that attempt is).
The other, major point of concern would be the international information sharing. That does set off the old big-brother-is-watching nerve. However, my cynical view is that online information privacy is a lie in any case - whatever you're prepared to put / read / watch / do online is already being scrutinized by someone out there. Whatever you put online, you'd better be prepared to back it up. We've had cases in my jurisdiction where a copyright holder managed to compel (through a court order) ISPs to hand over user data. And as much as I dislike it on a personal level, it goes back to the need to strike a balance with recognising and protecting the rights of copyright holders. And I think as we've seen from MegaUpload, international cooperation and sharing of information and international cross-border procedures are very much there.
Drilling down, the information sharing relates to statistical data and other
relevant information concerning intellectual property rights infringements as well as the
collection of information on best practices to prevent and combat infringements. I.e. this isn't a blanket targetting of all data (although a lot turns on what 'infringement' is defined as - potential infringement? Actual prosecution? To me, if a person has already committed an offence and have been charged in court, the person has no right to say that information about the prosecution cannot be shared with international enforcement agencies. But if this is going to allow potential pre-emptive targetting of potential infringements, then again, it's open to abuse). Back to the balance once more - what we want is to be able to protect the data of the innocent, while making it easier for international agencies to go after real offenders.
For me, I'm all about freedom of expression and due process, but I can't sign anything I don't understand, and I think I need quite a bit more information on ACTA. And I think what we need is not just a "No I don't want this legislation I don't want any legislation the internet should be free" protest, which isn't going to cut water with the politicians because it doesn't address their concerns. We need a movement towards defining what right a copyright holder has - recognising that there is a certain amount of good in allowing circulation of works, recognising that service providers that allow this circulation may not actually be harming the rights holders - this right can actually be recognised in law if done correctly (again, the argument in favour of defined safe harbours). And for my part, I will until my dying breath argue that derivative works are not copyright infringement - and it would really, really help to have that stamped down in law somewhere.
Now the problem is, the copyright holders have more money and a lot more clout and are calling for absolutes.
(Disclaimer: I am not an intellectual property law lawyer and this does not constitute legal advice. This article purely represents the personal opinion of the author and should not be relied on. Please seek your own independent legal advice from a qualified person in your jurisdiction.)
I've read the ACTA text (fairly quickly, though) and I haven't seen anything that would add to what we already have under existing law. It's classic international law, worded extremely broadly, leaving countries to impose individual legislation. Theoretically open to abuse (as always), but - countries already have the ability to pass such legislation. Given the Megaupload saga, I'm pretty sure that countries will be rushing to put such local laws in place, ACTA or no.
The issue I have against SOPA is that it purports to bypass due process by allowing shutting down of websites and suchlike without having to obtain a court order. The issue with this is that people can apply to the government can shut down whosoever they like on a suspicion, without adequate proof - and even if the shutdown is later reversed, the damage is done. The fact that SOPA can target websites that are for legitimate uses makes this worse.
As against that, I do believe in protecting the rights of copyright holders, because from a purely practical perspective, some copyright holders out there may do things for free, but a vast majority don't. For them, it's a living. If there is no economic incentive for copyright holders to produce works because they're losing all that income to piracy, we end up with no works. No anime, no books, no music, no movies. Not ideal. (Besides, I'm sure we've all gotten riled up about plagiarism of our works before, even if those works are non-profit. Oh, the bitchfests of yesteryear). - As a rights holder, I want to be able to write to a service provider to tell them to take down a plagiarised copy of my work, where the offender in question won't take it down himself.
It's a fine balancing game, and what I've seen in the ACTA text is an attempt to meet that balance (I can't comment on how good the attempt is, which is precisely the problem):
Article 27.2
Further to paragraph 1, each Party’s enforcement procedures shall apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy. [FN13] (Emphasis added).
FN13: For instance, without prejudice to a Party’s law, adopting or maintaining a regime providing for limitations on the liability of, or on the remedies available against, online service providers while preserving the legitimate interests of right holder. (Emphasis added).
I can see how this can be abused. I can also see how it can be beneficial - right now, the policing of copyright in international spheres and the digital sphere is a big... uncertain ... thing. The Napster case in the US could be easily replicated in my jurisdiction, and the problem for service providers is that they don't know what's legal or not.
Asking countries to define legality is not, of itself, an evil - if it helps to clarify what the boundaries of legality are by setting out specific, useful safe harbours for an online service provider to fall within. This can actually help service providers. Of course, there is always the possibility that a country may make those safe harbours unuseable or too narrow, but ACTA in and of itself does not purport to define those safe harbours or to set limits on them. (And it does actually highlight that there should be safe harbours, which means that signatories would have to make an attempt to address this, however half-assed that attempt is).
The other, major point of concern would be the international information sharing. That does set off the old big-brother-is-watching nerve. However, my cynical view is that online information privacy is a lie in any case - whatever you're prepared to put / read / watch / do online is already being scrutinized by someone out there. Whatever you put online, you'd better be prepared to back it up. We've had cases in my jurisdiction where a copyright holder managed to compel (through a court order) ISPs to hand over user data. And as much as I dislike it on a personal level, it goes back to the need to strike a balance with recognising and protecting the rights of copyright holders. And I think as we've seen from MegaUpload, international cooperation and sharing of information and international cross-border procedures are very much there.
Drilling down, the information sharing relates to statistical data and other
relevant information concerning intellectual property rights infringements as well as the
collection of information on best practices to prevent and combat infringements. I.e. this isn't a blanket targetting of all data (although a lot turns on what 'infringement' is defined as - potential infringement? Actual prosecution? To me, if a person has already committed an offence and have been charged in court, the person has no right to say that information about the prosecution cannot be shared with international enforcement agencies. But if this is going to allow potential pre-emptive targetting of potential infringements, then again, it's open to abuse). Back to the balance once more - what we want is to be able to protect the data of the innocent, while making it easier for international agencies to go after real offenders.
For me, I'm all about freedom of expression and due process, but I can't sign anything I don't understand, and I think I need quite a bit more information on ACTA. And I think what we need is not just a "No I don't want this legislation I don't want any legislation the internet should be free" protest, which isn't going to cut water with the politicians because it doesn't address their concerns. We need a movement towards defining what right a copyright holder has - recognising that there is a certain amount of good in allowing circulation of works, recognising that service providers that allow this circulation may not actually be harming the rights holders - this right can actually be recognised in law if done correctly (again, the argument in favour of defined safe harbours). And for my part, I will until my dying breath argue that derivative works are not copyright infringement - and it would really, really help to have that stamped down in law somewhere.
Now the problem is, the copyright holders have more money and a lot more clout and are calling for absolutes.
(Disclaimer: I am not an intellectual property law lawyer and this does not constitute legal advice. This article purely represents the personal opinion of the author and should not be relied on. Please seek your own independent legal advice from a qualified person in your jurisdiction.)
