IT SOUNDS much like any other yawn-inducing cross-border treaty. But the nascent Anti-Counterfeiting Trade Agreement (ACTA) thatâs on the table at this weekâs G8 meeting in Japan may have far-reaching consequences. If it becomes international law, anyone who offers copyrighted files over the internet or downloads them may be labelled a criminal and forcibly disconnected from the net.
ACTA aims to make it easier to penalise and prosecute people running websites or networks that aid and abet the sharing of copyrighted content, including music, movies, TV shows and books. While copyright infringement is already illegal, policing it across multiple borders has been difficult, especially as fleet-of-foot file-sharers can shift their operations from one jurisdiction to another at the click of a mouse. By enshrining ACTA principles in national laws, the G8 hopes to make flight pointless.
The proposed treaty has progressed with remarkable speed by the standards of international law. Quietly proposed by the Bush administration in September 2007, it quickly gathered support from the European Union, Australia, New Zealand, Canada, Japan, Switzerland and Mexico.
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The alacrity with which ACTA is being introduced, and the lack of public debate, has alarmed watchdogs. âGiven the speed with which this treaty is being negotiated, and its potentially significant impact, the lack of transparency in the negotiation process and failure to provide citizens with an opportunity for informed consultation is extremely concerning,â says a statement from California-based pressure group, the Electronic Frontier Foundation.
So swift and secretive have deliberations been that ACTA might easily have slipped under the radar altogether had it not been for a discussion paper that leaked from a source close to the Canadian government this May. ACTA is ostensibly designed to create a global coalition against the counterfeiting of goods â ranging from medicines to aircraft spares and designer underpants â all currently covered by a confusing array of international laws.
The treaty also assumes that copying digital content amounts to counterfeiting and proposes cross-border powers to combat it. The leaked paper reveals that ACTA-based laws would make it a criminal offence to provide services that help people breach copyright.
âThe treaty proposes rigorous cross-border digital policingâ
This is important because under current legislation it is not always clear when someone has broken the law, says Marc Temin, a lawyer based in Boston, Massachusetts, who specialises in intellectual property law. âWhen somebody makes a copyrighted file available to the public, itâs not clear whether that constitutes a direct infringement, as actually copying and sending the copy to somebody would do.â
This is where ACTA comes in. ACTA would make it illegal not just to share copyrighted material, but to operate websites that index the locations of such material that people can download. It would also outlaw systems like BitTorrent or Gnutella that help users find files on âpeer-to-peerâ (P2P) networks of computers.
âACTA is a Pirate Bay killer,â says the team behind the whistle-blowing website Wikileaks, referring to the Swedish website that claims to be the worldâs largest BitTorrent site. Pirate Bay has so far defied prosecution under Swedish law, but ACTA could open the door to legal claims similar to the US actions that shut down TorrentSpy, another popular BitTorrent site, in May.
Wikileaks, which first hosted the leaked ACTA discussion paper, itself has a stake in the outcome: its stance that it publishes sensitive, often copyrighted documents in the public interest may not be tenable if ACTA becomes law. When Wikileaksâ US-hosted site was closed by a court earlier this year, its Belgian and Australian sites stayed online. But ACTAâs international scope could allow disgruntled companies or governments to shut down its mirror sites around the world.
Others are also worried about ACTAâs consequences. The Free Software Foundation believes ACTA will induce internet service providers (ISPs) to block P2P file-sharing communications â killing off the legitimate applications of such systems. âWithout file-sharing and P2P technologies like BitTorrent, distributing large amounts of free software will become much harder, and more expensive,â the foundation says.
ACTA will also apply âborder measuresâ that allow âcopyright infringing shipmentsâ to be detected â prompting speculation that everything from USB drives to iPods and laptops will become searchable at border crossings. And ISPs would be subject to a legal regime that safeguards them from liability for copyright infringement as long as they âco-operate with rights holders in the removal of infringing materialâ.
This last provision will raise hackles at some ISPs, many of whom have previously argued that they shouldnât be responsible for the content carried by their networks. That makes sound business sense: they donât want to alienate customers who donât like the idea of their activity being policed, or lose customers who fall foul of rules on downloading. But theyâre coming under pressure to change their stance from governments that view copyright enforcement as critical for protecting creative industries â and would like ISPs to act as âcopyright copsâ.
Some of ACTAâs would-be signatories have already taken action towards this end. As of January next year, France will impose a âthree-strikes-and-youâre-outâ measure on persistent downloaders of copyrighted content. Users downloading pirated music will initially be warned by email, then receive a second warning in writing. If they persist, theyâll forfeit their broadband connection for a year. When the move was first mooted last November, French president Nicolas Sarkozy dubbed it âa decisive moment for the future of a civilised internetâ.
The UK government, for its part, has issued an ultimatum: if ISPs and rights-holders cannot hammer out a mutually agreeable approach to the online protection of intellectual property rights, the government will impose one. Some ISPs are co-operating: Virgin Media is working with the BPI, the trade body for the UK recorded music industry, in issuing warning letters to homes whose IP addresses appear to be involved in downloading copyrighted music. When the BPI â which routinely monitors file-sharing networks â notifies Virgin of illegal activity, the ISP sends a warning letter to the customer.
The letter is carefully worded to acknowledge that the person who pays the bill may not be the one who is downloading the illicit files â an ambiguity that critics of this approach have seized upon. But it makes it clear that Virgin holds the paying customer to be ultimately responsible. âSome families have thanked us,â says Virgin spokesman Asam Ahmed, defending the move. âThey were not aware of what their kids were doing online or what neighbours were downloading through their unsecured Wi-Fi routers.â
Other ISPs are defiant. âI cannot foresee any circumstances in which we would voluntarily disconnect a customerâs account on the basis of a third party alleging a wrongdoing,â says a statement from Charles Dunstone, CEO of The Carphone Warehouse Group, which runs ISP TalkTalk. âWe believe that a fundamental part of our role as an ISP is to protect the rights of our users to use the internet as they choose.â
Copy protection no match for teenage kicks
âWas digital rights management ever going to solve the music industryâs problems? Absolutely not.â So says Feargal Sharkey, former frontman of legendary punk band The Undertones.
Sharkey is now chief executive of British Music Rights, which represents music performers and publishers. He says DRM â software that restricts the copying and playback of files â is âa complete nonsense of a conceptâ that canât possibly provide robust security against copyright violation. âYouâd have to put a DRM decoder in every single audio speaker on the planet. And even then I could work out a way to get around it that would take five minutes to implement.â
The music industry seems to be coming round to his way of thinking. Big music companies, initially keen to stop users from swapping files by locking them with DRM, have found copy-protection ineffective and unpopular. Music can increasingly be downloaded without DRM from sites like iTunes, Amazon MP3 and eMusic.
But theyâre still keen to shut down websites and networks that facilitate copying. Are they being short-sighted? Perhaps. Legalising such sites, rather than criminalising their users, could yield dividends.
âSixty-three per cent of 14 to 24-year-olds are downloading and not paying for music,â says Sharkey. âEighty per cent of them told us they would subscribe to a legitimate P2P service, and when we asked them what they would be prepared to pay, it was an interesting number. And when I say âinterestingâ, I mean the kind of number that should give the music industry incredible optimism about its future.â
