I’ve written up in detail  my comments on the new acta text.

The text reads like a debate between countries. Most of the more salient issues are still up in the air; I’ve tried to pinpoint those issues along with the varying takes on them by different negotiators.

Recurring themes include: 1) regulatory capture by private industries of government resources such as courts and border officials; 2) significant privacy concerns sparked by “sharing” information with rights holders and other countries during investigations; 3) expansion of US law internationally despite contradicting decisions in other jurisdictions; and 4) blatant disregard for existing international IP institutions and norms.

These, in shorter form, are some of the important features to note:

1.  ACTA imposes mandatory statutory damages in civil copyright law. Australia, Mexico, and New Zealand do not want this provision, as their law does not include statutory damages (which have been shown in the US to often be grossly disproportionate to the harm done).

2. Privacy in civil cases: accused infringers must produce evidence of the “means of production and distribution” during civil proceedings. The EU proposes that this mandate be subject to data privacy protections.

3. Smaller de minimis exception in border measures: TRIPS provides an exception for the import of “small quantities of goods of a non-commercial nature”. ACTA would further limit this exception to quantities “reasonably attributable to personal use of the traveler”, exempting gifts for other people rather than tying de minimis to non-commerciality as TRIPS does.

4. Ex officio action at the border: Under TRIPS, countries may optionally mandate ex officio action (customs-official-initiated action, rather than by a party) only once a prima facie case of infringement has been shown. ACTA as proposed by the US mandates such ex officio action by all countries (”shall” instead of “may”), and refers to “suspected” counterfeit goods rather than goods for which a prima facie case of infringement has been shown. The government is doing the work of private parties before a substantial case has been established.

5. Privacy: Releasing personally identifying information of border crossers to rights holders without process: TRIPS stated that identifying information be disclosed to rights holders only after a determination that goods were infringing “on the merits of a case”. ACTA as proposed by the US allows release of such information as part of an investigation, once the goods have been confiscated rather than once guilt has been at least initially established.

6. Demands on the court and on border officials: ACTA proposes a fast turn around by the courts in these cases, and encourages governments to absorb storage and application fees to avoid burdening rights holders.

7. Expanding the definition of criminal copyright infringement internationally. TRIPS had a “commercial scale” requirement for criminal copyright infringement. The United States understands “commercial scale” in its domestic law to include acts done for “private financial gain”- which rights holders argue includes downloading pirated music for no cost. The US wants “private financial gain” included in ACTA, and also wants a category of “significant willful infringements that have no direct or indirect motivation of financial gain”- again targeting music and movie filesharing.

8. ACTA enlarges the scope of international criminal law sanctions to mandate imprisonment. TRIPS allowed countries to chose between criminal fines and prison terms, and set no minimum standards for either. ACTA mandates “penalties that include actual sentences of imprisonment” and includes a negotiator’s note requiring countries to “encourage competent authorities” to “impose penalties… including imposition of actual terms of imprisonment.”

9. ACTA exports the Digital Millenium Copyright ACT (DMCA), which includes the US’s understanding of third party liability for copyright infringement, inconsistent with other jurisdictions. New Zealand, for example, notes that it does not find search engine activity to be copyright infringing, and therefore questions why this provision regarding third party liability exists in reference to search engines. Mexico notes that takedown must be requested “by a competent authority”, not a party. Japan also notes that these provisions are not currently consistent with its jurisdiction.

10. Exceptions and limitations, and fair use: The US asks for a note including reference to exceptions and limitations (at the discretion of countries according to the Berne Convention and TRIPs) and fair use (a US concept); the EU wishes to include exceptions and limitations in the actual text of the agreement.

11. DMCA technological circumvention measures. The US wants to expand DMCA criminalization of technological circumvention (”hacking” digital rights management (DRM)). The EU wants to striek the criminalization aspect of this, limiting to civil remedies. Japan explicitly notes that its laws currently allow for circumvention in certain cases; New Zealand notes that circumvention of noncopyrighted works is not a crime, and access control is not a right given to copyright holders.

12. International cooperation: ACTA mandates cooperation between countries in criminal IP infringement cases. The EU proposes “particular attention… to infringing goods detrimental to… health and safetly.” This potentially targets the distribution of generic medicines.

13. Information sharing between countries: parties are debating whether countries “may” or “shall” share information during investigations. This could be extremely problematic for countries with different standards of privacy norms and laws.

14. Paternalistic crafting of domestic legislation: Countries must work with countries not party to ACTA to craft domestic legislation that brings them in line with ACTA. Canada wishes to strike this provision.

15. Officially fostering dialogue with private party righs holders: The US wants to establish formal mechanisms for authorities to hear the view of rights holders. Again, this looks like the government doing work on behalf of private entities.

16. Transparency of process- with major discretional exceptions: Exceptions to transparency of ACTA-mandated investigations include whether they would be “contrary to … domestic laws or policy” or “the public interest”- extremely vague, governmentally discretionary terms.

17. A new IP institution to Preserve ACTA? The ACTA “Committee” would oversee disputes, amendments to ACTA, and supervise implimentation. This disadvantages those devleoping countries who are not original signatories to the agreement.

18. Only five states are required for ratification. Effectively, the five most powerful can rush to sign on to terms everybody else will have to take on later.