Rhetoric exaggerates ACTA leaked negotiations text

November 9th, 2009 by Barry Sookman Leave a reply »

Last week bloggers including Michael Geist went hysterical over the “leaked” ACTA memorandum telling the public that it mandated “three strikes” with Internet disconnection based on merely three unproven allegations of online file sharing, among other things.

Turns out that the summary of the text was inaccurate. Further, other bloggers have pointed out that to a large extent the proposed provisions discussed in the leaked memo reflects  existing, international norms for copyright protection in the EU, US and our other trading partners.

For example, Kim Walker, a partner with Pinsent Masons, who specializes in intellectual property law wrote a blog “Don’t panic over the secret copyright treaty”  She noted that:

“Some of the world’s biggest economies are gathered in South Korea this week to discuss copyright law in secret. The plans they are coming up with are still under wraps, but that has allowed hyperbole to replace reason…

The plans that have leaked this week have caused outrage, but many of those same propositions already exist in law in the UK, or are merely mild extensions of existing legal provisions.

Though it is thoughtful of trade negotiators to spare us the ugly sight of the horse-trading and chicanery that makes up every law-making process, they may have caused an even uglier spectacle: feverish speculation that is beginning to border on the hysterical.”

The leaked EU document which was available for download from Geist’s blog <http://www.michaelgeist.ca/component/option,com_docman/task,doc_download/gid,26/> (PDF) is actually only two pages of text that contain a written account of an oral report on a draft document that was still being negotiated.

Turns out that the EU memo does not state that member states must agree to any “three strikes” regime. It says that ISPs must “put in place policies to deter unauthorized storage and transmission of IP infringing content”.

While a three strike regime is something that would meet this requirement, the EU memo points out that this requirement is intended as a self regulatory system. So it would not mandate the much more effective and desirable graduated response processes being put in place by our trading partners such as the UK, New Zealand, and France.

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