23rd apr, 2010

Reading the ACTA agreement

The last few days I have been pondering over the ACTA text released earlier this week. I have collected a few oddities, but my general impression is that nobody is out to get the ordinary person or consumer.
·         It is a hard text to read and gain absolute insight in consequences. Therefore any critics claiming that the text will result in this or that are engaged in political lobbying and not legal interpretation. The amount of text in brackets and up for discussion is huge.
·         The text is about enforcement of IP not creation of IP. However it is still uncertain if the text will cover IP in general or only copyrights and trademarks.
·         This agreement derogates from any national law, which makes it a very weak legal text.
·         The language used is very political. Words like “promote”, “ensure” and “facilitate” is widely used throughout the text and indicate that interpretation and scope will be subject to local flavor.
·         I like the de minimis protection for consumers in section 2 (Border measures). This ensure that if u but a pair of counterfeit sunglasses – no matter how morally wrong you are – you can exclude such purchases from prosecution. A good idea in my opinion, although it could be seen as counter to the initiatives set out to changing the morale of consumers.
·         An interesting article proposal in section 3 (Criminal Enforcement) tries to take on massive copyright infringement without a financial gain purpose = Pirate bay and similar. The proposal for article 2.14 -1(a) will ensure that it is possible to take people who wilfully engages in copyright infringement even if there is no personal financial gain motive. The argument of what is wilful will be very long and interesting.
·         Section 4 covering enforcement of IP in a digital environment will suck up most of the attention, but is also the section with most uncertaincy because of options and most of the text in brackets and up for discussion. The good news for ISP´s is that they seem to be off the hook and free of liability in most cases. In the options a procedure of taking down material if presented with adequate proof of infringement is introduced…much like the DMCA. That will cause some havoc even if the text is not final in any way. One of the options also introduce an obligation for the ISP to give the IP holder the identity of the infringer.
Im still reading but all in all I´m not that worried

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