ACTA

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Questions about enforecement policy (see below)

(from Christine Runnegar - ISOC Public Policy - Please feel free to add comments, please sign using ~~~~)

  • What impact (if any) would the policy have on privacy?
  • Is the policy proportionate to the harm it is designed to prevent or

reduce?

  • Would the policy discriminate against legitimate uses of applications?
  • Would the policy discourage or prevent the use of certain technologies and/or development of new communications protocols? If so, what would this mean?
  • Would the policy alter the basic architecture of the Internet? Are there any unpredictable or identifiably negative consequences?
  • What impact (if any) would the policy have on security?
  • Would the policy inhibit or enhance users' willingness to access the Internet or obtain access to the Internet?
  • Would the policy directly or indirectly reduce Internet access or the availability of Internet access?
  • Would the policy materially raise or lower the costs of Internet access? To whom?
  • Is there any risk of significant or material damage to third parties' (i.e. non-infringers) use of or access to the Internet? How?
  • Would the policy encourage or discourage the use of certain business models? If so, what would this mean?

ARTICLE 2.18 [ENFORCEMENT PROCEDURES IN THE DIGITAL ENVIRONMENT][1]

1. Each Party shall ensure that enforcement procedures, to the extent set forth in the civil and criminal enforcement sections of this Agreement, are available under its law so as to permit effective action against an act of [trademark, copyright or related rights][intellectual property rights] infringement which takes place [by means of the Internet][in the digital environment] , including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.

2. [Those measures, procedures and remedies shall also be fair and proportionate.][2] . 3. Without prejudice to the rights, limitations, exceptions, or defenses to [[ patent, industrial design, trademark and][copyright or related rights]][intellectual property rights] infringement available under its law, including with respect to the issue of exhaustion of rights, each Party [confirms that] [shall provide for] [civil remedies as well as limitations, exceptions, or defenses with respect to the application of such remedies, are available in its legal system in cases of third party liability[[3]][or liability for those who authorize infringement, or both] for [[patent, industrial design, trademark and][copyright or related rights]][intellectual property rights] infringement.[4]

Option 1

  • [ 3. Each Party recognizes that some persons[5] use the services of third parties, including online service providers,[[6]] for engaging in [ patent, industrial design and trademark,] copyright or related rights infringement. Each Party also recognizes that legal uncertainty with respect to application of copyright and related rights, limitations, exceptions, and defenses in the digital environment may present barriers to the economic growth of, and opportunities in, electronic commerce.][7] Accordingly, in order to facilitate the continued development of an industry engaged in providing information services online while also ensuring that measures to take adequate and effective action against copyright or related rights infringement are available and reasonable each Party [shall][ may]:
    • (a) provide limitations[8] on the scope of civil remedies available against an online service provider for infringing activities that occur by
      • (i) automatic technical processes, and
      • (ii) the actions of the provider’s users that are not directed or initiated by that provider and when the provider does not select the material, and
      • (iii) the provider referring or linking users to an online location,

when, in cases of subparagraphs (ii) and (iii)[9] the provider does not have actual knowledge of the infringement and is not aware of facts or circumstances from which infringing activity is apparent; and ]

Option 2'

  • [Each Party recognizes that some persons[10] use the services of third parties, including online service providers,[11] for engaging in intellectual property rights infringements.
    • (a) In this respect, each Party shall provide limitation on the [liability of] [ scope of civil remedies available against an] on-line service provider[s] for infringing activities[12] that occur by[13]
      • (i) automatic technical processes [ that keep the provider from taking measures to prevent the infringement], or
      • (ii) the actions of the provider´s users that are not initiated nor modified by that provided and when the provider does not select the material or
      • (iii) the storage of information provided by the recipient of the service or at the request of the recipient of the service,

when exercising the activities as stipulated in paragraph 3(a)(ii) and/or (iii) the online service providers act [takes appropriate measures] expeditiously, in accordance with applicable law [s], [such as those] to remove or disable access to infringing material or infringing activity upon obtaining actual knowledge of the infringement [or the fact that the information at the initial source has been removed or disabled.] [or having reasonable grounds to know that the infringement is occurring]]

Option 1

  • (b) condition the application of the provisions of subparagraph (a) on meeting the following requirements:
    • (i) an online service provider adopting and reasonably implementing a policy[[14]] to address the unauthorized storage or transmission of materials protected by copyright or related rights [ except that no Party may condition the limitations in subparagraph (a) on the online service provider’s monitoring its services or affirmatively seeking facts indicating that infringing activity is occurring]; and
    • (ii) an online service provider expeditiously removing or disabling access to material or [activity][alleged infringement], upon receipt [of legally sufficient notice of alleged infringement,][of an order from a competent authority] and in the absence of a legally sufficient response from the relevant subscriber of the online service provider indicating that the notice was the result of mistake or misidentification.

except that the provisions of (ii) shall not be applied to the extent that the online service provider is acting solely as a conduit for transmissions through its system or network.]

Option 2:

  • [Paragraph 3(a) shall not affect the possibility for a judicial or administrative authority, in accordance with the Parties legal system, requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility of the parties establishing procedures governing the removal or disabling of access to information. The Parties shall not impose a general monitoring requirement on providers when acting in accordance with this paragraph 3.]
  • [ 3 ter. Each Party shall enable right holders, who have given effective notification to an online service provider of materials that they claim with valid reasons to be infringing their copyright or related rights, to expeditiously obtain from that provider information on the identity of the relevant subscriber.
  • 3 quater. Each Party shall promote the development of mutually supportive relationships between online service providers and right holders to deal effectively with patent, industrial design, trademark and copyright or related rights infringement which takes place by means of the Internet, including the encouragement of establishing guidelines for the actions which should be taken.]
  • [4.[15] In order to provide adequate legal protection[16] and effective legal remedies against the circumvention of effective technological measures that are used by authors, [performers or producers of phonograms] [the right holder of any copyright or related rights or owner of an exclusive license[[17]] in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, [performances, and phonograms] [or other subject matters specified under Article 14 of the TRIPS Agreement], each Party shall provide for civil remedies, [or] [as well as] criminal penalties in appropriate cases of willful conduct [[18]] , that apply to:

[Each Party shall provide for adequate legal protection[19] and effective legal remedies, in the form of civil remedies or criminal penalties in appropriate cases of willful conduct, against the circumvention of effective technological measures that are used by authors, performers or producers or phonograms in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonogram. These shall apply to:] (a) the unauthorized circumvention of an effective technological measure[20] [that controls access to a protected work, performance, or phonogram]; and (b) the manufacture, importation, or circulation of a [technology], service, device, product, [component, or part thereof, that is: [marketed] or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than circumventing an effective technological measure.]]

  • [5. [4.2] Each Party shall provide [that a] [adequate legal protection against a] violation of a measure implementing paragraph (4) [is a separate civil or criminal offense,] independent of any infringement of copyright or related rights.[21]][22]

Option 1

[Further, [each Party may adopt exceptions and limitations to measures implementing paragraph 4 so long as they do not significantly impair the adequacy of legal protection of those measures or the effectiveness of legal remedies for violations of those measures.][23]

Option 2

  • [ 5. Each Party may provide for measures which would safeguard the benefit of certain exceptions and limitations to copyright and related rights, in accordance with its legislation.]
  • [6. [In order to] [Each Party shall] provide adequate and effective legal remedies to protect [ electronic] rights management information[, e] [ E]ach Party shall provide for civil remedies, [or] [as well as] criminal penalties] in appropriate cases of willful [[24]] conduct, that apply to any person performing [without authority] any of the following acts knowing [or with respect to civil remedies having reasonable grounds to know] that it will induce, enable, facilitate, or conceal an infringement of any copyright or related right:
    • (a) to remove or alter any [electronic] right management information[25]
    • (b) to distribute, import for distribution, broadcast, communicate, or make available to the public copies of works, [or other subject matters specified under Article 14 of the TRIPS Agreement] [performances, or phonograms], knowing that [electronic]rights management information has been removed or altered without authority.]
  • [7.] [6.2] Each Party may adopt [limitations or] exceptions to the requirements of subparagraphs (a) and (b) [of paragraph (6)] [so long as they do not significantly impair the adequacy of legal protection or effectiveness of legal remedies for violations of those measures.]

Refs

  1. ↑ 45 At least one delegation reserves its right to revisit elements of this Section at a later date.
  2. ↑ 46 [See identical comment on the draft Chapter 2, Section 1 “Civil Enforcement” and Section 3 “Criminal Enforcement”. A suggestion is to move these provisions into Chapter 1, Section A which applies to the whole Agreement. Direct reference to TRIPS might also clarify the scope of these obligations.]
  3. ↑ 47 [For greater certainty, the Parties understand that third party liability means liability for any person who authorizes for a direct financial benefit, induces through or by conduct directed to promoting infringement, or knowingly and materially aids any act of copyright or related rights infringement by another. Further, the Parties also understand that the application of third party liability may include consideration of exceptions or limitations to exclusive rights that are confined to certain special cases that do not conflict with a normal exploitation of the work, performance or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder, including fair use, fair dealing, or their equivalents.] At least one delegation opposes this footnote
  4. ↑ 48 Negotiator’s Note: This provision may be moved and located in the civil enforcement section.
  5. ↑ 49 Negotiator’s Note: Definition of person still pending in General Provisions.
  6. ↑ 50 [For purposes of this Article, online service provider and provider mean a provider of online services or network access, or the operators of facilities therefore, and includes an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.]
  7. ↑ 51 At least one delegation suggests moving the second and third sentences of paragraph 3. At least one delegation suggests moving the first and second sentences of paragraph 3.
  8. ↑ 52 For greater certainty, the Parties understand that [these limitations are not intended to harmonize the liability of online service provider, but exclude liability in certain situations. Thus] the failure of an online service provider’s conduct to qualify for a limitation of liability under its measures implementing this provision shall not bear adversely upon the consideration of a defense by the provider that the provider’s conduct is not infringing or any other defense.
  9. ↑ 53Clarify which conditions apply to which activities this provision shall not bear adversely upon the consideration of a defense by the provider.
  10. ↑ 54 [Negotiator’s Note: Definition of “person” still pending in General Provisions.]
  11. ↑ [55 For purposes of this Article, online service provider and provider mean a provider of online services or network access, or the operators of facilities therefore, and includes an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.]
  12. ↑ [56 The activities covered in paragraph 3(a)(i) cover the mere conduit and the activities covered in paragraph 3(a)(ii) and (iii) cover respectively caching and hosting in accordance with parties legal systems.]
  13. ↑ 57At least one delegation proposes to redraft this sub-paragraph.
  14. ↑ 58 At least one delegation proposes to include language in this footnote to provide greater certainty that their existing national law complies with this requirement.
  15. ↑ 59At least one delegation has reservations about several elements in paragraph 4.
  16. ↑ 60At least one delegation opposes inclusion of ‘adequate legal protection’.
  17. ↑ 61 At least one delegation opposes inclusion of ‘or owner of an exclusive license’
  18. ↑ 62 [For the purpose of this Article, willful conduct means actual knowledge or reasonable grounds to know that he or she is pursuing the objective of circumventing any effective technological measure.]
  19. ↑ 63 At least one delegation opposes inclusion of ‘adequate legal protection’.
  20. ↑ 64 For the purposes of this Article, effective technological measure means any technology, device, or component that, in the normal course of its operation, [controls access to a protected work, performance, phonogram, or protects any copyright or any rights related to copyrights.][is controlled by the right holders through application of an access control or protection process such as encryption, scrambling, or other transformation of their works, performances or phonograms, or a copy control mechanism, which achieves the protection objective.]
  21. ↑ 65 [The] [In accordance with the applicable national legislation, the] obligations in paragraphs (4) and (5) [are][may be] without prejudice to the rights, limitations, exceptions, or defenses to copyright or related rights infringement. Further, [in implementing paragraph (4), no Party may][paragraph (4) does not imply any obligation to] require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as the product does not otherwise violate any measures implementing paragraph (4).
  22. ↑ 66 At least one delegation is to reflect on appropriate location for this provision.
  23. ↑ 67Negotiator’s Note: This provision is subject to broader government action/sovereign immunity provision elsewhere in the Agreement.
  24. ↑ 68 [For the purpose of this Article, willful conduct means knowingly performing without authority any of the following acts listed under subparagraph 6 (a) or (b), if such person knows or has reasonable grounds to know that by so doing he is inducing, enabling, facilitating, or concealing an infringement of any copyright or any rights related to copyright.]
  25. ↑ 69For purposes of this Article, [electronic] rights management information means: (a) information that identifies a work, [or other subject matters specified under Article 14 of the TRIPS Agreement] [performance, or phonogram]; the author [of the work, the performer of the performance, or the producer of the phonogram] [or any other right holders of the subject matters specified under Article
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