Last week saw a lot of digital ink spilled over speculation about what the Internet Chapter of the Anti-Counterfeiting Trade Agreement (ACTA) is going to contain. Some opponents of ACTA including Prof. Geist helped to leak the contents of a two page confidential memorandum that contained a written account of an oral report on what was still being negotiated.[i]
Based on this two page preliminary document, ACTA opponents began a frenzied propaganda campaign against ACTA. Prof. Geist led the feverish attack writing articles, blogs, tweets, giving a speech in Washington, and press and radio interviews.[ii]
Other commentators have pointed out that the attacks made against ACTA are based on inaccurate interpretations of the leaked memo.[iii] What has not yet clearly emerged is the extent to which ACTA antagonists like Prof. Geist have used scaremongering tactics to create a moral panic to undermine ACTA.[iv]
I have documented in other writings how Prof. Geist has used misleading and exaggerated statements before to attempt to influence public policy on issues related to Internet copyright and piracy issues.[v] He has now applied these techniques to ACTA.
Background to ACTA
The main objective of ACTA is to establish new global standards for the enforcement of intellectual property rights (IPRs) and provide for increased global cooperation to address counterfeiting and piracy. These problems are global and requite global solutions. Over $200 billion annually (approx 2% of world trade) involves counterfeit or pirated goods. This global problem contributes to public health and safety risks and a significant portion of this trade is carried out by organized crime.[vi]
The idea for the establishment of a new international treaty on IPR enforcement first came from Japan. It raised the issue several times at the Global Congress on Combating Counterfeiting (GCCC). In the Lyon Declaration from the 2005 Congress, and in the 2006 follow-up, the Congress recommended consideration of Japan’s suggestion to develop an international treaty on IPR enforcement. Japan then raised the concept of a plurilateral Anti-Counterfeiting Trade Agreement (ACTA) at the 2005 Gleneagles G8 Summit. Building on GCCC and G8 recommendations, the focus in the proposed ACTA is on international cooperation, enforcement and legislation.[vii]
Canada is involved in the ACTA negotiations because of the importance of intellectual property protection in fostering innovation and promoting economic prosperity. Canada’s participation strengthens our bilateral relationship with our key trading partners including the U.S., Japan, EC/EU and its 27 member states, and Korea. Canada is concerned about the risk to Canadians of the increasing presence of counterfeit/pirated goods. Canada is also participating in ACTA to be able to influence the outcome of the negotiations. [viii]
The text of the ACTA is not yet public. In fact, from all accounts the text is still being negotiated. In accordance with Canadian Government practice concerning trade agreements, these negotiations are taking place in confidence to facilitate the exchange of views and to permit the negotiation and compromises that are necessary in order to reach agreement on complex issues.[ix]
Notwithstanding its present inchoate status, a moral panic has been created around ACTA. Anti-copyright advocates have alleged that ACTA would result in a loss of Canada’s sovereignty. They have attacked the legitimacy of the secrecy surrounding the negotiations and have spread fear and panic about what ACTA might contain in an effort to kill or maim it.
Loss of sovereignty
Prof. Geist asserts that the effect of ACTA “would dramatically reshape Canadian copyright law and eliminate sovereign choice on domestic copyright policy”. He claims, “If adopted, the robust copyright debate that occurred over the summer would be rendered moot. Instead, it would appear that a made-in-Canada approach would give way to decisions made last week at secret meetings in Seoul”.
Prof. Geist is engaging in fear mongering. By participating in the negotiations Canada can help shape the international norms and standards that will govern copyright on the Internet. Canada is participating in the negotiations so that it can influence the outcome.
If Canada does not agree with the negotiated text, it can always refuse to sign the agreement or to implement its provisions. Under Canadian law, a trade agreement does not come into force merely because it is signed. If amendments to Canadian law are involved it must go through further stages, including being implemented by a law of Parliament.[x] Further, the adoption of a trade agreement requires, among other things, that it be tabled in the House of Commons for 21 sitting days before it can be ratified.[xi]
It is ironic that Prof. Geist argues that being part of ACTA would “eliminate sovereign choice on domestic copyright policy Canada” while at the same time arguing that Canada is fully compliant with its international obligations — even though it has not implemented the WIPO treaties which it signed over 12 years ago.[xii] It is hard to find any bona fides explanation for how Prof. Geist can argue that negotiating and signing a treaty like the WIPO Copyright Treaty does not oblige a country to implement and ratify it but that signing a trade agreement like ACTA does.
Prof. Geist’s contention that the ACTA negotiations are usurping the copyright reform process is equally unsupportable. Canada has just completed an extensive copyright reform consultation process. There is no reason that Canada cannot advance copyright reforms in this country while at the same time advancing compatible interests in the ACTA negotiations.
Moreover, at a fundamental level, Prof. Geist’s criticisms about ACTA’s undermining Canada’s sovereignty could be made about any international trade agreement Canada ultimately decides to join. ACTA is intended to build on and complement existing international legal frameworks pertaining to the protection and enforcement of intellectual property rights, including TRIPs. Is TRIPS per se bad because it requires Canada to act in accordance with internationally accepted standards and norms which Canada has voluntarily agreed to? Of course not. Did voluntarily agreeing to TRIPs imply that Canada surrendered its sovereignty? Of course not. To the contrary, entering into TRIPs involved the exercise of our sovereignty just as agreeing to ACTA would.
Lack of transparency
Prof. Geist argues that the “ACTA process has been marked by unprecedented secrecy” and “lack of transparency”. His assertions suggest that there is something irregular in how the negotiations are being conducted. However, it is well known that trade agreements and treaties are negotiated in secret and his attacks on the ACTA negotiating process is illegitimately designed to create the false impression that the secrecy associated with ACTA is improper or unusual, when it is not.
The government’s practice with respect to the negotiation of international agreements and treaties is summarized in International Treaties: Canadian Practice, Government of Canada,[xiii] as follows:
In Canada, debate on the negotiation and adoption of international trade liberalization agreements over the past 15 years has revealed that Parliament and Members of Parliament play only a small part in the negotiation and ratification of international treaties.
The executive branch of the federal government in fact controls all stages of the process. This control extends to the content of the negotiations, which are often conducted in secret. Moreover, this secrecy is a significant factor in the federal government’s negotiating strategy. Nothing, or almost nothing, is made public before the parties have reached an agreement in principle on the content or even the wording of the treaty.
The Government is applying this well established principle to the ACTA negotiations. According to the Government:
A variety of groups have shown their interest in getting more information on the substance of the negotiations and have requested that the draft text be disclosed. However, it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation. This allows delegations to exchange views in confidence facilitating the negotiation and compromise that are necessary in order to reach agreement on complex issues. At this point in time, ACTA delegations are still discussing various proposals for the different elements that may ultimately be included in the agreement. A comprehensive set of proposals for the text of the agreement does not yet exist.[xiv]
Given the massive amount of fear mongering that the leaked EU memo has generated by those who want to kill it, can anyone blame governments around the world from trying to keep its contents secret until the actual text is agreed to?
The Leaked Memo –Fear Mongering and Misinformation
The leaked memorandum, posted on Prof. Geist’s site on November 6, 2009,[xv] is dated September 30, 2009. It is a summary of an oral presentation made by the USTR to EU members of the EU-US IPR Working group. The confidential disclosure was provided as a preliminary indication of the content of the U.S. proposal for the Internet Chapter. The text of the chapter was not final and was still being discussed internally and among stakeholders and was subject to change.
The EU memo states that the USTR draft text is around 3 pages long and was generally modeled on the respective section of the recently concluded US-Korea FTA (KORUS) (Chapter 18), but in a simpler and shorter manner.
Now let’s examine what Prof. Geist asserted the EU memo says versus what it actually says.
Prof. Geist claims that ACTA will require Canada to implement a “three strikes” regime in which a family’s internet would be cut off based on only three unproven allegations of copyright infringement. ISPs will be able to share information between them to ensure that when an Internet connection is cut off a family cannot obtain a connection for a 12 month period. Disconnection will occur without any court hearing to determine if there has been infringement.
Some illustrative quotes from Prof. Geist are set out below:
ACTA “would move Canada toward a three-strikes-and-you’re-out approach that requires Internet providers to cut off subscriber access on three allegations of infringement.”
“It’s incredibly disproportionate. Three unproven allegations of infringement will cut off Internet service for a year for an entire family.”
“It’s not based on the individual user, it’s based on the connection.”
“Big shift in the ACTA is potentially to ratchet up the requirement to a notice and termination. This is what has people scared. How it works is that if you have three of these allegations of infringement — and note there is no court or hearing on whether there is an actual infringement — then you’ve gotten three strikes and then you’re out. That means your Internet access is cut off.”
“Notice and termination is incredibly disproportionate…And then the ISPs may share information about customers who have been terminated.”
“It could last for one year and not just for an individual. It could be for an entire household if one member has three allegations of copyright infringement.”
“Based on the leaked document, it describes five basic points or five main areas with respect to what the internet provisions might look like… The example that was used in the document I saw talked about moving to what is sometimes referred to as graduated response. Other times it is referred to as three strikes and your out. Other times just described as notice and termination. Whatever you call it, it means three allegations of infringement and you loose your internet access for a year. Its HADOPI one in France and HADOPI two in France and what was being considered in a number of other countries.”
Of course, if the ACTA Internet Chapter actually required everything Prof. Geist says it does there would be cause to be concerned. But the EU memo says nothing of the sort. Moreover, there is nothing in the leaked memo from which such scaremongering conclusions can be drawn.
The leaked memo actually states the following:
Section 3: Safe-harbours for liability regarding ISPs, based on Section 512 of the Digital Millennium Copyright Act (DMCA)2, including a preamble about the balance between the interests of internet service providers (ISPs) and right-holders. See also KORUS Chapter 18.10.30. According to US, the language proposed is somewhere in the “middle” between the WIPO internet treaties, KORUS and the DMCA, which probably means that it is more detailed than the first but not as specific as the latter.
ISPs are defined as in Section 512 (k) of DMCA.
On the limitations from 3rd party liability: to benefit from safe-harbours, ISPs need to put in place policies to deter unauthorized storage and transmission of IP infringing content (ex: clauses in customers’ contracts allowing, inter alia, a graduated response). From what we understood, the US will not propose that authorities need to create such systems. Instead they require some self-regulation by ISPs.
This Section 3 should also contain “broad” provisions regarding notice-and takedown mechanisms.
The focus of Section 3 is about defining the conditions that an ISP must satisfy in order “to benefit from safe-harbours” such as a safe harbor against possible infringement by hosting content that is infringing. To benefit from the safe harbours, ISPs “need to put in place policies to deter unauthorized storage and transmission of IP infringing content (ex: clauses in customers’ contracts allowing, inter alia, a graduated response).”
The passages quoted above refer to the well known condition that is already the law in Australia, the U.S. and elsewhere and which is required by KORUS. This condition permits ISPs to rely on legal protections provided by safe harbours if they adopt “and reasonably implement a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers”. But note, the language of the EU memo does not even go this far. It says “inter alia a graduated response”.
Nothing in the EU memo or in KORUS suggests anything that would require Canada to implement a three strikes regime in which a family’s internet would be cut off based on three unproven allegations of copyright infringement. Nothing suggests a mandatory 12 month disconnection. Nothing suggests that ISPs can share information between them to ensure that when an Internet connection is cut off a family cannot obtain a connection for a 12 month period from another ISP. Nothing suggests any “incredibly disproportionate” action. In fact, the wording in KORUS and in comparable legislation around the world is to reasonably implement a policy “that provides for termination in appropriate circumstances”. These provisions, which have been part of US law for over a decade, have not created any sort of three strikes regime among the major US ISPs.
In his speech “The ACTA Threat” Prof. Geist’s asserted that ACTA would require a state administered “three strikes” or “graduated response” process such as the process now being implemented in France and in other countries.[xvi] However, the graduated response process that is being established in France, like the graduated response processes that are being created in the UK and New Zealand are wildly different from what Prof. Geist described. These graduated response processes, which Canada should consider emulating, would all require proof of multiple instances actual infringement coupled with failures to cease the infringing activities following receipt of notices. Moreover, in no case could an account be terminated without a prior judicial, administrative, or other fair and impartial procedure for determining guilt. Further, disconnection would be a remedy of last resort that would apply only to the most incorrigible of offenders.
However, the wording in the EU memo makes clear that it is not referring to any state administered “three strikes” regime. The EU memo states “From what we understood, the US will not propose that authorities need to create such systems. Instead they require some self-regulation by ISPs.”
Notice and takedown
Prof. Geist claims that ACTA would require Canada to reject “notice and notice” “in favor of a U.S. notice and takedown model that requires removal of content without evidence of infringement.”
Again, Prof. Geist’s assertion is not accurate. The EU memo suggests that ACTA could require “notice-and takedown mechanisms”. However, “notice and notice” and “notice and takedown” are two complementary processes for dealing with online infringement. Notice and takedown is a very useful process for addressing infringing content that is hosted by an ISP. Notice and notice is a somewhat useful process that is used to attempt to reduce file sharing on P2P networks. (It only becomes effective when there are real threats of consequences for ignoring a notice of infringement.) The ACTA, like treaties such as TRIPs and FTAs like KORUS, only set minimum standards and do not prevent a party from providing more extensive protection for, and enforcement of, intellectual property rights as long as it does not contravene the treaty. See KORUS s18.5.
Prof. Geist’s assertion that ACTA’s requirement for notice and takedown would prevent Canada from implementing notice and notice is a example of the classic “false dilemma” propaganda technique.[xvii] Canada would have the choice to adopt notice and notice even if it implements notice and takedown, but the options presented by Prof. Geist suggest this would not be the case.
Further, Prof. Geist misstates how the U.S. notice and takedown system works. The DMCA requires an applicant to provide evidence of infringement before content can be removed from a site. The applicant must file a statement under penalty of perjury stating a good faith belief of infringement. The regime also contains a counter-notice mechanism that makes it easy for a person to have the removed content reposted to the site.
Prof. Geist claims that the Internet provisions “feature specific requirements on the legal protection for digital locks that extend far beyond those required under international law”. According to him, the anti-circumvention legislation establishes “a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements.” He says, “For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules. These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception. Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices.”
Again, Prof. Geist inaccurately describes what the EU memo actually says:
“Section 4: Will focus on technical protection measures (TPMs). Language inspired by US-Jordan Free-Trade Agreement (article 4.13)4, as well as by the WIPO Internet Treaties (articles 11 WCT and 18 WPPT):
-Parties to provide adequate civil and criminal remedies that are specific to TPM infringements, i.e. treat these as separate offenses form “general” copyright infringements.
– TPM infringements would be: (i) prohibition of circumvention of access controls and; (ii) prohibition of manufacture and trafficking of circumventing DRM devices.
– There will be exceptions to these prohibitions available to ACTA members.
– “Fair use” will not be circumscribed.
– There will be no obligation for hardware manufacturers to ensure interoperability of TPMs.”
The US-Jordan Free-Trade Agreement (article 4.13) http://www.ustr.gov/webfm_send/1041
13, says the following:
“In applying the prohibition under Article 11 of the WCT and Article 18 of the WPPT on circumvention of effective technological measures that are used by authors, performers and producers of phonograms in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances and phonograms, each Party shall prohibit civilly and criminally the manufacture, importation or circulation of any technology, device, service or part thereof, that is designed, produced, performed or marketed for engaging in such prohibited conduct, or that has only a limited commercially significant purpose or use other than enabling or facilitating such conduct.”
Prof. Geist is incorrect when he asserts that Internet provisions “feature specific requirements on the legal protection for digital locks that extend far beyond those required under international law.” They do not create “a WIPO+ model”. There is a clear consensus that the WIPO treaties require protections against access control circumvention and against trafficking in circumvention tools. See, Facebook fair Copyright, Replies to Professor Geist.[xviii]
His suggestion that the regime described in leaked memo would prevent signatories from including “a fair use/fair dealing exception” is also patently false. The EU memo specifically says “There will be exceptions to these prohibitions available to ACTA members. ‘Fair use’ will not be circumscribed”. [xix]
ACTA Threats and Moral Panics
Prof. Geist has spread fear by claiming that ACTA requires “three strikes” and mandatory Internet bans based on unproven allegations of infringement, when the leaked EU memo doesn’t support these assertions. In doing so, Prof. Geist has helped to create a moral panic out of ACTA.[xx]
Prof. Geist obtained access to the leaked EU memo. Rather than immediately posting the memo and accurately commenting on its actual text, he gave a speech about it in Washington (that is posted on the Internet and which he links to on his site) that misstates its contents.[xxi] Prof. Geist then posted the leaked memo on his site. He then continued to further the moral panic with misleading interviews about it which he further disseminated using twitter and friendfeed and by posting a link to his interview on his site.[xxii] He then published another inaccurate article in the Toronto Star that is also posted on his web site and which he further disseminated using electronic means such as RSS feeds.[xxiii]
Canada is involved in the ACTA negotiations because of the importance of intellectual property protection in fostering innovation and promoting economic prosperity. Canada’s participation in ACTA is important because of the need for global action to deal with counterfeiting and piracy problems. Canada is also at the table with our trading partners because it give us an opportunity to influence the outcome of the negotiations. [xxiv]
The recent attacks on ACTA are very disturbing. It is not merely that the contentions about loss of sovereignty and lack of transparency are unfounded. What is truly troubling are the scaremongering tactics used to smear ACTA.
Prof. Geist is the holder of a prestigious chair at the University of Ottawa Faculty of Law. He also consults and has advised the government on copyright issues. Prof. Geist received access to the confidential memorandum involving negotiations related to copyright in which the government is involved. By his own admission, he helped leak the contents of the confidential memo. Before revealing the actual text of the memo and afterwards, he inaccurately summarized it using inflammatory examples to shock Canadians. He used his popular blog and columns in the press and media interviews and RSS feeds to help to create a moral panic about ACTA. As a consequence, the public was misled.
[i] Prof. Geist made the admission in his speech in Washington on November 5, 2009 “in the interests of full disclosure I was involved in some of those leaks”, Michael Geist, The ACTA Threat, http://blip.tv/file/2837223
[ii] See Law Bytes: Secret Talks Threaten Copyright Policy, http://bit.ly/28Q7tK, ACTA Threatens Made-in-Canada Copyright Policy, http://bit.ly/2M2PDA, Chat with Michael Geist on Secret Copyright Rules, http://bit.ly/1FU25k, The ACTA Threat: My Talk on Everything You Need To Know About ACTA, But Didn’t Know To Ask, http://bit.ly/olNDS, CBC’s As It Happens on ACTA, http://bit.ly/1ZJKA2, Canada in Talks Over Copyright Laws With Bite, Calgary herald, http://bit.ly/QGD6m, The ACTA Internet Chapter: Putting the Pieces Together (Nov 3rd 2009), http://bit.ly/1OdmBz, Michael Geist, The ACTA Threat, http://blip.tv/file/2837223.
[iii] Ben Sheffner ACTA: Time to Calm Down, and Look at the Facts, http://bit.ly/lPTBO, Nate Anderson, The ACTA Internet Provisions: DMCA Goes Worldwide, http://bit.ly/mCF23, Pinsent Masons, Don’t Panic Over the Secret Copyright Treaty, http://bit.ly/2sfjYU, Chris Castle, ACTA Misreporting: Anatomy of a Smear, http://viigo.im/1we7.
[iv] “Scaremongering” means “a person who spreads stories that cause public fear”. Cambridge Dictionaries Online.
[vi] The Anti-Counterfeiting Trade Agreement (ACTA), Presentation by Douglas George, Intellectual Property, Information and Technology, Trade Policy Division (TMI), Roundtable ACTA Consultation, April 6, 2009, http://bit.ly/1rDPGD
[viii] The Anti-Counterfeiting Trade Agreement (ACTA), Presentation by Douglas George, Intellectual Property, Information and Technology, Trade Policy Division (TMI), Roundtable ACTA Consultation, April 6, 2009, http://bit.ly/1rDPGD
[xvii]“False Dilemma” this fallacy is committed if, in the course of an argument, it is presumed without argument that p and q are the only possibilities, when in fact there are other possibilities. CritThink Glossary, http://bit.ly/16ECK5.
[xix] One may wonder why a fair use exception would be permitted given that it would substantially weaken the legal protection for TPMs.
[xx] According to William Patry a “moral panic” is a “reaction by a group of people based on the false or exaggerated perception that some cultural behavior of group…is dangerously deviant and poses a menace to society”. William Patry, Moral Panics and the Copyright Wars (Oxford University Press, 2009) at p. 135.
[xxiii] Law Bytes: Secret talks threaten copyright policy, http://bit.ly/28Q7tK, posted on Prof. Geist’s blog at http://www.michaelgeist.ca/content/view/4521/159/, republished by Digital Copyright Canada, http://www.digital-copyright.ca/aggregator/sources/2
[xxiv] The Anti-Counterfeiting Trade Agreement (ACTA), Presentation by Douglas George, Intellectual Property, Information and Technology, Trade Policy Division (TMI), Roundtable ACTA Consultation, April 6, 2009, http://bit.ly/1rDPGD