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Diluted ACTA IP Accord Offers Consolation to Digital-Rights Groups

By Kenneth Corbin
October 8, 2010

For more than two years of closed-door negotiations among the United States and 36 other nations, the Anti-Counterfeiting Trade Agreement (ACTA) has been mired in controversy, with digital-rights groups and some Web companies fretting over the prospect of harsh and invasive new rules put in place to curb Internet piracy and other intellectual property violations.

This week, the final draft of the agreement was released to the public following the conclusion of the 11th and final round of talks last week in Tokyo, with negotiators saying that only minor details remain before the treaty is ratified.

With the 24-page agreement now open for public inspection (PDF available here), interested parties have had a chance to review what could become a blueprint for cross-border trade in the digital age.

For groups such as Public Knowledge, an outspoken critic of the secretive nature of the ACTA talks, the final draft is a measured improvement over earlier versions.

In a statement addressing the release of the draft, Public Knowledge President Gigi Sohn called it a "qualified victory," noting that the negotiators have stripped out provisions that would lean on Internet service providers to police their networks for infringing content.

"Some of the most egregious provisions from earlier drafts have been removed on topics ranging from digital protection measures to the liability of intermediaries like Internet service providers and search engines," Sohn said. "The agreement would give more flexibility to the signatories than did previous versions."

A footnote in the agreement's section on "Enforcement in the Digital Environment" explains that it aims to strike a balance between "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 holders."

The final draft stipulates that signatories may provide a mechanism for rights holders to obtain information from ISPs about subscribers who have been linked with the exchange of pirated content only after they have "filed a legally sufficient claim of infringement," and that those claims are to be executed in a manner that "preserves fundamental principles such as freedom of expression, fair process and privacy."

But while that language may have put to rest the worst fears of digital-rights advocates, Sohn restated her criticism of the closed-door talks, as well as the process by which ACTA can be implemented domestically without congressional approval. Public Knowledge and other critics have long warned against the entertainment industry exerting undue influence to steer the ACTA talks toward harsh penalties and excessive enforcement mechanisms to combat piracy.

For the Recording Industry Association of America (RIAA), one of the groups that has been at the forefront of the fight against online infringement -- a campaign that has been accompanied by waves of negative publicity -- the ACTA final draft is hopeful sign, if not a silver bullet.

"While ACTA does not provide all of the answers about how governments will move forward to tackle online piracy, it is a very important multilateral statement concerning the importance of finding solutions to online theft," RIAA Executive Vice President Neil Turkewitz said in a statement. "It may not be a precise roadmap, but it is a powerful expression of a common vision and unity of purpose."

He added, "We welcome the fact that ACTA parties explicitly note the importance of promoting cooperation between Internet service providers and rights holders with respect to online copyright theft, and make clear that the enforcement provisions of the treaty apply equally to the digital environment."

The office of U.S. Trade Representative Ron Kirk, who has been representing the United States in the negotiations, said it is working to conclude the agreement "as promptly as possible."

"We must now work quickly with our partners to finalize the results achieved in the Tokyo," Kirk said in a statement. "This work represents a significant victory for those who care about protecting and enforcing intellectual property rights."

Kenneth Corbin is an associate editor at InternetNews.com, the news service of Internet.com, the network for technology professionals.