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CAUT Bulletin Archives

December 2009

Educators Beware the Anti-Counterfeiting Trade Agreement

By David Robinson
In early November, negotiators from the United States, Japan, the European Union, Canada and a select handful of other nations huddled together in a closed-door session in Seoul, South Korea. It was the latest in a continuing effort to hammer out an international agreement ostensibly aimed at cracking down on the traffic in counterfeit goods. But in fact the proposed Anti-Counterfeiting Trade Agreement has little to do with counterfeiting, or even with trade for that matter. It is instead a new global copyright treaty that would fundamentally ratchet up legal protections for rights-holders. If a deal is reached, it could have serious implications for heavy users of copyrighted material, including academic staff.

ACTA details have been inexplicably shrouded in secrecy since talks were launched two years ago. The lack of transparency is perplexing. After all, we’re talking about a copyright treaty, not state secrets. Or maybe not. The U.S. government refused a request from two public interest groups — the Electronic Frontier Foundation and Knowledge Ecology International — to free up information on the treaty, citing national security concerns.

Despite the best efforts of those involved to keep the public in the dark, there have been leaks from the negotiations. We don’t know everything about the agreement, but we’re getting a fairly clear picture of what’s being planned. According to a leaked background note and a European Commission briefing paper, we know the parties’ primary goal is to create international copyright rules that go far beyond what currently exist in treaties under the United Nations’ World Intellectual Property Organization or the World Trade Organization’s agreements.

The agreement would establish a global institution with a secretariat and with a legally-binding dispute resolution process. Other provisions would grant border guards increased powers to search people and personal property, including laptops and other electronic devices, raising serious privacy concerns. It would create criminal provisions that would apply not only to the commercial infringement of copyright, but also to infringement for non-financial gain, such as educational, research and personal uses.

ACTA would also set strict rules related to Internet material. Academic staff, for instance, could be affected as the proposed rules would apply to material presented in a web page for course use. Other copyright-enforcement measures would oblige governments who sign on to the deal to adopt a three-strikes-and-you’re-out rule, requiring internet service providers to cut off subscribers based solely on three allegations of infringement. That means if you’re accused of copyright infringement, you won’t get your day in court or have a chance to appeal. It would only take three notices for an ISP to cut service to a user.

The treaty would provide legal protection for digital locks and security protection on material — provisions that draw directly from the U.S. Digital Millennium Copyright Act, but extend far beyond existing international law and Canada’s copyright law. As some American faculty have learned the hard way, these “anti-circumvention” measures have had the unintended consequence of stifling some scientific research. Since the U.S. copyright law has been in force, a number of computer scientists researching software and network security have faced lawsuits and criminal prosecution as a result of their legitimate research activities into anti-circumvention technologies.

There is much at stake for academic staff in Canada in the ACTA negotiations. The treaty would have serious consequences for the proposed reforms to our domestic copyright law. After facing a storm of protests last year, the federal government was forced to withdraw proposed copyright reform legislation. A series of public consultations was launched where the dominant message heard from Canadians was that of the need to better balance the rights of owners, creators and users. Industry Minister Tony Cle­ment has promised a “made in Canada” approach to copyright reform. But that could all change if Canada signs ACTA.

ACTA would in effect impose the worst features of U.S. copyright law on copyright policy created domestically. It would remake and lock-in onerous restrictions on copyrighted works. It would further narrow the meaning of fair use, making it more difficult for academic staff to access and use material for education and research purposes.

The good news is that ACTA isn’t a done deal. There’s still time to demand greater transparency and to press for a more balanced approach to global copyright rules. Academic staff have a unique role to play in this debate, sharing the concerns of owners, creators and users. As creators and owners of copyrighted material, academics understand the importance of protecting their scholarly work. But as users of copyrighted material, they’re also aware, particularly in the age of digital information, of the importance of ensuring fair access in order to advance know­ledge and research.

David Robinson is associate executive director of CAUT.