Out-Law Analysis 3 min. read
05 Nov 2009, 2:48 pm
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 amongst those who object, quite reasonably, to elected officials conducting our business in secret.
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 negotiations surround the Anti-Counterfeit Trade Agreement (ACTA). This is a trade treaty being negotiated outside of the usual channels such as the World Intellectual Property Organisation (WIPO) and World Trade Organisation (WTO). Countries including the US, Japan, South Korea, Mexico, Canada and New Zealand, as well as the European Union, have got together to hammer out a plan.
That the proposal is not a part of an existing structure means that the usual rules of transparency and reporting don't apply. Up to a point that is the right of those doing the negotiating, but it does make people suspicious, and it does allow speculation to grow unchecked.
Negotiations have been going on for more than two years and people have consistently, and reasonably, called for elected governments to be more open about what is going on. Some worry that representatives of the industries most affected by copyright, such as the music and film businesses, are unduly influencing proceedings. Because we can't see what's going on, we can't make sure that that is not the case.
But this week speculation about the content of the eventual treaty in parts ran away with itself. Some leaks emerged about what might be in the final document and commentators were quick to cry foul. But if they look closer they will see that many of the provisions already exist in law, at least in the UK.
It has been said that each country that signed the treaty would have to create a 'laundry list' of penalties to deter people from infringing copyright on a commercial scale. That already exists in the UK. File-sharing could be prosecuted as a criminal offence under copyright law.
The treaty, it was said, would criminalise trading fake packaging for music and films. That is already an offence in the UK. Camcording films would be criminalised: again, that is law in the UK.
Some of the biggest shock was reserved for the idea of making ISPs liable for copyright infringements carried out by their subscribers. Yet that, too, is the case across the EU. If an ISP is told about a customer's copyright infringement or defamatory statement on pages it hosts, it must take action quickly otherwise it will be liable for the infringement.
The devil, of course, is in the detail. If the proposal is to make ISPs liable whether they know about illegal material or not, that would be an alarming development. Of course we don't know this, which is a flaw in the proceedings that critics are right to point out.
Under the plans, we are told, ISPs will have the chance to win back their immunity from liability if they behave in a certain way, reportedly along the lines laid out in a previous US trade agreement, this time directly with South Korea.
Again, though, that document describes a set-up that stops well short of the doomsday scenarios played out in reports and on blogs.
It says that countries should create "legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials".
According to reports, ACTA also provides that ISPs will have to terminate subscribers "in appropriate circumstances". In the UK, a copyright owner can force an ISP to disconnect a subscriber that the ISP knows to be infringing content. The copyright owner has to prove its case before a court, though – and at this time we don't know that ACTA proposes anything less.
The legislation banning technologies that break content encryption will also be bracingly familiar to UK residents. That, too, is already outlawed here.
The scenarios outlined by protesters against ACTA are truly worrying. But they are also not grounded in the few snippets we have seen. Of course it is entirely possible that they are contained in parts of the text that have not leaked.
When they bemoan the lack of transparency in negotiations, ACTA's critics are entirely right. But the exaggerations, while a perfect illustration of why the secrecy is dangerous, do not always help the critics' case.
By Kim Walker, a partner with Pinsent Masons, the law firm behind OUT-LAW.COM, who specialises in intellectual property law.