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Digital Copyright Protection is Going Global

November 20, 2009 by · Comments Off
Filed under: Business, Copyright Articles, Inventor & Entrepreneur Updates, Online Privacy 

Countries around the world are negotiating the terms to a new treaty, the ACTA, which is expected to have a profound international impact on the enforcement of copyright law

By Ed Nunes

Since the middle of 2008 forty countries from around the globe are negotiating the terms of the Anti-Counterfeiting Trade Agreement (ACTA).  Despite its name, the treaty will include a very important portion that will focus on the enforcement of copyrights violated via the internet.  There has been much public opinion stated about what the content of this “Internet Chapter” ought to contain.

One of the major criticisms of this treaty process is that it is going on behind closed doors, with no access being given to the public about the contents of the international policy decisions that are being made on their behalf.  Many internet advocacy groups are complaining loudly to the Obama administration about their lack of access and their inability to provide input into the treaty making process.  These organizations are further outraged by what they view is undeserved deference to the input large media corporations and their lobbyists.

Even though there has been lots of criticism about the secret nature of the meetings and what the ultimate contents of the treaty will include, there are some positive things that are likely to come out of this effort.

The Good

First, right now it is somewhat difficult to pursue copyright infringers in other countries.  One of the major barriers is finding someone who understands the copyright law of that particular country and the procedures for confronting infringers.  There are already treaties in place for honoring copyrights from other countries, like those formed under WIPO.  The ACTA will (hopefully) provide more depth explaining countries obligations as well as more uniformity in copyright law across the member nations.  It is the uniformity that is truly valuable.  If a person in the US is having her copyright infringed by a person in an ACTA member nation it will make it much easier for the copyright holder to pursue the infringer and protect her rights.

Second, according to a leaked version of the proposed contents of the “Internet Chapter” of the ACTA, the substance of this treaty is markedly similar to the copyright laws already enacted in the US.  The ACTA is looking like it might turn out to be an international version of the Digital Millennium Copyright Act (DMCA).  This is beneficial to US copyright holders, as it makes other countries follow the same digital copyright laws and procedures that people in the US already adhere to.

The Bad

There does appear to be one significant divergence in the language of the ACTA from current US law, however.  There is a proposed provision in the ACTA that will require ISPs to institute what is often referred to as a ‘three strike rule’ for accused infringers.  The three strikes rule, simply put, is a requirement that ISPs ban users after three instances of copyright infringement.  While this law seems reasonable, there are two significant problems.

First, the US has not implemented this law, and so if and when Congress ratifies this treaty it will create new law that was not first proposed by a legislator.  Internet advocacy groups claim that this is a circumvention of the law-making process and will grant greater rights for the entertainment industry without proper input from the American populace.

Secondly, the problem with this rule is in determining what constitutes a copyright violation.  Copyright is a complex area of law, and while copyright owners often assert infringement claims to ISPs via the DMCA, the supposed violators often can fall under exceptions to copyright law like the Fair Use doctrine.  It seems patently unfair if at all it takes is three accusations to cancel your home internet access.  On the other hand, however, requiring three court convictions for copyright infringement would make the law so rare in its use that it should hardly be on the books at all.

How this law would be implemented is yet to be seen, but it seems like there are some difficult pragmatic issues to be overcome for the law to be a just enforcement of digital copyrights.

Conclusion

As the world moves towards a more global economy it makes sense to conform laws in different nations so as to lower transaction costs between parties in different countries and allow for easy commerce across borders.  The ACTA is a positive step towards greater globalization and provides real benefit for copyright holders trying to enforce their legitimate rights internationally.  At the same time there is the concern about the balance of power that always exists in copyright law between the power of the copyright holders and the public who wish to use other people’s intellectual property.  All we can do for now is hope that when the ACTA is finalized in January of 2010 the member nations are able to strike a proper balance for the effective use of copyright law.