PublicACTA Blog: March 25, 2010 at 4:58 pm, by Jonathan
Why ACTA isn’t just about enforcement
Jonathan Penney is a Senior Research Fellow and Lecturer at Victoria University Law School, where he teaches intellectual property and Internet Law. He will be speaking at the PublicACTA event, along with noted keynote speakers Michael Geist and Kim Weatherall. In the past, Jonathon has written, blogged, and given public talks about ACTA, including its political and legal implications.
Concerns
Among my concerns about ACTA, is the tension between its scope as purportedly only concerning copyright “enforcement” and the fact that many of its proposed provisions are borrowed from the U.S. Digital Millennium Copyright Act (DMCA), a statute that does much more than enforce, but impacts on substantive rights and interests.
A good example of this are proposed ACTA provisions on technological protection measures, or TPMs. TPMS are measures like digital rights management used by copyright holders to enforce their copyrights through software or computer code; thus not long ago when you purchase a song off Apple Itunes, there were certain restrictions on how many times you can copy that song, which are digitally coded into the song itself. That was a TPM (though Apple abandoned these song restrictions in early 2009). TPMs are controversial because they often leave no space for copyright users to take advantage of legal exceptions to copyright restrictions like fair use or fair dealing, or prevent users from freely accessing a copyrighted work that, over time, has entered the public domain. With TPMs whatever the code says, goes.
Leaked drafts of ACTA’s text suggest that the treaty— much like the DMCA— would make creating, using, or distributing devices that would circumvent such TPMs a separate criminal or civil offense. Under the 2008 New Zealand copyright reforms, there are prohibitions on making, importing, distributing devices that circumvent TPMS, and a criminal prohibition for doing so for commercial purposes, but no prohibitions on consumers using or possessing such devices. In other words, ACTA may create substantive a new civil and criminal offence— and indirectly conferring new “access control” rights on copyright holders they do not current possess— despite its pretensions as an “enforcement only” treaty. Indeed, even putting aside current New Zealand law, ACTA is supposedly limited to enforcing copyright and intellectual property, not technology measures or access control.
Leaks also suggest the NZ Government is live to this point, and has been saying all right things in negotiations— such raising concerns that TPMs are outside the intended object of ACTA as an enforcement treaty; but other countries seem to be on board with these provisions. So getting people talking about these issues, both in New Zealand and elsewhere with events like PublicACTA, is necessary to keeping ACTA honest, both its actual scope and text.
2 Comments to Why ACTA isn’t just about enforcement
Colin Jackson (On March 25, 2010 at 5:39 pm)
Nice work, Jonathan. The whole TPM (aka DRM or digital restrictions management) issue needs to be gone into thoroughly. It’s not acceptable for the law to be used to be used as a back door way tonprevemt people from exercising the rights they have paid for.
Rick Shera (On March 25, 2010 at 6:01 pm)
Good stuff Jonatahn.
We have already “been there, done that” with TPMs back in 2007. As a result of strong submissions by InternetNZ, ISPs, librarians, academics, IP creators and others, the Select Committee that reported the original technology changes to the Copyright Act back to Parliament, accepted a TPM regime which is recognised as providing at least some balance on this issue (see pp8-9 of the commentary to the bill – http://bit.ly/bLfhdP (pdf)).
Despite rightsholder lobbying which saw ill-conceived last minute changes to other parts of the bill (s92A etc), Parliament held fast on the TPM changes. There is even less reason to resile from that position now.