Final draft of ACTA is out - nothing to see here

Thanks to the Patently-O blog on the subject, I learn that the Final Draft of the Anti-Counterfeiting Trade Agreement (ACTA) has been released. The EFF's web page on the subject has some background.

Earlier drafts contained a great deal of "pick and mix" material which still up for debate between the parties. The Final Draft suggests that those differences have been ironed out (though since the deliberations have been in secret I do not know the details).

My skim read suggests that there is not much in the treaty that would require the UK government to change our copyright law either in substance or as to the procedures used to enforce it. That does not mean that ACTA won't be used as an excuse (or opportunity depending on your outlook) to make changes, but there is a sufficient amount of flexibility in the treaty and a sufficient number of weasel words, that there should be no need for it to do so.

The Patently-O blog post does a good job of summarising the feel of the treaty. My own further thoughts follow.

Measures of damages

Article 2.2(2), which survives from earlier drafts, is particularly unreasonable. It starts uncontroversially enough:

Each Party shall provide that in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer ... to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement.

in other words damages should be compensatory and aim to compensate the injured for the wrong done to them — the usual position in English law. The treaty goes on:

In determining the amount of damages for infringement of intellectual property rights, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price.

Now just how bad this is depends on quite what effect "shall have the authority to consider" will have. Logically merely because a court may consider something, does not automatically mean that the court will pay much attention to it. In practice a legislative requirement to consider a factor will often mean that a court feels obliged to give that factor more weight than it would otherwise do.

What is so odd about that is that "market price" and "suggested retail price"may be a very long way from a good measure of the actual loss suffered by a rights holder. For physical goods, production costs may make up a large part of that price, but even for digital goods, the loss effected by infringement will almost always be less than the actual price because not everyone will have been prepared to buy at that price.

It is also very unusual to have a law that requires a court to consider one of the party's evidence as to damages, but not the other. The usual practice is for the court to have one or more objective measures for awarding damages and for the parties to submit evidence as to what those damages should be.

Since, strictly speaking, an English court certainly has the authority to consider any measure of damages put forward by either of the parties, this particular article should require no change to English law.

More damages

Article 2.2(3) obliges that party's to the treaty to implement one of 3 mechanisms for establishing damages for copyright infringement. All parties would have to chose one of:

• pre-established damages (that is some fixed measure that the court can apply mechanically
• presumptions for determining the amount of damages — in other words a pre-established mechanism for computing the amount
• additional damages — that is extra damages over and above those used to compensate

Section 97(2) of the UK's Copyright Designs and Patents Act 1988 already provides for additional damages. So there is no need for change here.

In my last post on ACTA I pointed out that the United States does have a rather draconian form of statutory damages, but only awarded to those who had the presence of mind to register their copyright — surprisingly many do not. At first sight it looks like the US will have to remove that precondition or implement one of the other options for pre-computing damages.

As I said then, it seems odd to me that copyright owners should be put in a better position than most other classes of claimant in civil proceedings (who have to prove their loss in the normal way and who are generally entitled to compensation for their loss and that's all). Rights in real property are not protected in this way. Similarly, someone carelessly injured and left quadriplegic (to use an emotive example) would have to prove all their loss and would expect to obtain no more. Why should IP be so special?

Costs

Article 2.2(5) requires parties to allow courts to award the winner their costs in copyright proceedings. That seems uncontroversial from the English point of view, where "costs follow the event" but the usual US rule is that each party bears their own costs. Copyright is special. 17 USC 505 allows the prevailing party to be awarded their costs and attorney's fees, but this is restricted by which requires that the copyright be registered at the time of the infringement (or soon after where the infringement takes place shortly after publication) as a prerequisite of costs recovery. Again the US may be forced to relax this requirement as a consequence of ACTA.

Summary

There's lots more in the treaty. The criminal provisions are probably already compatible with UK law, though they are triggered by "wilful" copying on a "commercial scale", rather than the various specific situations set out in places like Section 107 of the Copyright Designs and Patents Act 1988. There are all sorts of requirements for the parties to the treaty to work together to eliminate IP infringement and even (in article 3.4) a requirement to engage in pro-IP propaganda (one wonders at a time of budget cuts why we need to spend money on this but...). As far as I can see there's not much in the treaty that needs to directly impinge on our law. What our government chooses to do in response is another matter.

ACTA is out

A draft (in PDF form) of ACTA, the Anti-Counterfeiting Trade Agreement, has been released by the European Commission. This is the first time any of us have been allowed "officially" to see a draft of the treaty as hitherto negotiations have been conducted in secret. As governments often remind us — if you have done nothing wrong you have nothing to hide — why the secrecy?

Inspired by leaked versions, the treaty has excited much opposition. For example from La Quadrature du Net, the EFF and many others. Michael Geist gives a very thorough analysis on his blog site for those inclined to dig deeper.

If you read the draft you will see that it is marked up with numerous possibilities, indicating differences of opinion between the national delegations. The draft coyly avoids telling us which those delegations might be, but a recently leaked draft may give a clue. I am fairly confident that an analysis of the various parties positions can be crowd-sourced so that we all know where to apply pressure.

This multiple choice nature of the draft makes it hard to analyse whether it is really good or bad or indeed what effect it will have at all. This is particularly so where there are two possible drafts: one stating what parties to the treaty "may" do (which means they need not) or "must" do (which means they certainly will). For example Article 2.2(2) on damages.

I leave a thorough analysis to others who have rather more time than I do, but a couple of points strike me as being of particular interest to the digital/internet environment:

Damages

The normal rule in English civil proceedings is that the damages are compensatory and intend to put you back in the position you would have been if the defendant had done no wrong (or not breached a contract or whatever). In some circumstances a claimant might be able to force a defendant to disgorge any gain they have made without a good lawful reason, or even to pay over any profits they have made as a result of their actions.

In the world of intellectual property this limitation does not operate. Many jurisdictions allow more compensation on top. For example s97(2) of the Copyright Designs and Patents Act 1988, a court may award "such additional damages as the justice of the case may require", having particular regard not only to any benefit gained by the defendant but also to the "flagrancy" of the infringement. In the United States 17 USC 504 allows a copyright owner, where they have registered their copyright, to elect to receive "statutory damages" rather than actual damages and profits, at a minimum of $750 (but up to $30,000) per work infringed. The ludicrous effect of such damages is well known.

ACTA's proposed article 2.2(2) proves that the parties may or shall (which to be later determined) maintain a system of pre-established damages much like that of the US, as well as presumptions for determining the amount of damages. Such a presumption might be that the damages suffered for copying N works each of which would have made (if sold) a profit of p would be Np. Such a sum would almost always be more (probably much more) than the actual loss. There may (or shall) also be a provision for "additional damages".

It is quite possible that rights industries could make more money this way than they would if there were no infringement which would be a surprising outcome in any other field of law.

Criminal liability

Copyright infringement may be a criminal offence in the UK in essentially two circumstances: first where it is done in the course of business and second where it is done "to such an extent as to affect prejudicially the owner of the copyright" (I am simplifying this somewhat). Article 2.14 of ACTA suggests there should be criminal liability for infringement on a commercial scale, which is defined to include "significant wilful". I am unclear on what "wilful" means (perhaps readers can help) but that looks to me to increase the range of criminal liability.

Online infringement

The headline part of ACTA for me ought to be section 4 which concerns enforcement "in the digital environment". With the passage of the Digital Economy Act 2010 it may be we have seen the last of new attempts to legislate in this field in the UK for a few years. It may be that ACTA makes little difference to us except to provide the government of the day with political cover to push things a little further.

Article 2.18 requires that parties make available enforcement procedures that include "expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement". So to protect and deter. The detail that results from this general requirement could be almost anything because the draft includes two main options, and many sub-options, that range from a less intrusive system of copyright control than we have in the UK to a system that goes much further. I find it difficult to give any kind of useful summary — if such a thing is even possible.

There are options to protect intermediate service providers though these may be predicated on the provider either taking proactive steps to prevent infringement (but not including monitoring) or responding properly to requests to block/take-down material or both. There are also provisions that may require legal protection of effective technological measures, though to what extent they will go further than those already imposed on us is unclear.

Conclusion

There's an awful lot more in there. I look forward to reading a wider analysis and to seeing what response the various campaigning organisations now adopt. Overall the treaty seems to be a mixture of unnecessary repetition of existing treaty arrangements (such as TRIPS or WCT) and overly draconian provisions. In my view the best outcome would be for the treaty to be abandoned, but I realise that is unlikely, so it might be time to focus more on the detail.