Feeds

Don't panic over the secret copyright treaty

At least, not until we know what's in it

High performance access to file storage

Opinion Secret gatherings of the world's governments are usually the stuff of fevered imaginings, but just one such gathering is this week generating its own fair share of paranoia.

Some of the world's biggest economies are gathered in South Korea this week to discuss copyright law in secret. The plans they are coming up with are still under wraps, but that has allowed hyperbole to replace reason amongst those who object, quite reasonably, to elected officials conducting our business in secret.

The plans that have leaked this week have caused outrage, but many of those same propositions already exist in law in the UK, or are merely mild extensions of existing legal provisions.

Though it is thoughtful of trade negotiators to spare us the ugly sight of the horse-trading and chicanery that makes up every law-making process, they may have caused an even uglier spectacle: feverish speculation that is beginning to border on the hysterical.

The negotiations surround the Anti-Counterfeit Trade Agreement (ACTA). This is a trade treaty being negotiated outside of the usual channels such as the World Intellectual Property Organisation (WIPO) and World Trade Organisation (WTO). Countries including the US, Japan, South Korea, Mexico, Canada and New Zealand, as well as the European Union, have got together to hammer out a plan.

That the proposal is not a part of an existing structure means that the usual rules of transparency and reporting don't apply. Up to a point that is the right of those doing the negotiating, but it does make people suspicious, and it does allow speculation to grow unchecked.

Negotiations have been going on for more than two years and people have consistently, and reasonably, called for elected governments to be more open about what is going on. Some worry that representatives of the industries most affected by copyright, such as the music and film businesses, are unduly influencing proceedings. Because we can't see what's going on, we can't make sure that that is not the case.

But this week speculation about the content of the eventual treaty in parts ran away with itself. Some leaks emerged about what might be in the final document and commentators were quick to cry foul. But if they look closer they will see that many of the provisions already exist in law, at least in the UK.

It has been said that each country that signed the treaty would have to create a 'laundry list' of penalties to deter people from infringing copyright on a commercial scale. That already exists in the UK. File-sharing could be prosecuted as a criminal offence under copyright law.

The treaty, it was said, would criminalise trading fake packaging for music and films. That is already an offence in the UK. Camcording films would be criminalised: again, that is law in the UK.

Some of the biggest shock was reserved for the idea of making ISPs liable for copyright infringements carried out by their subscribers. Yet that, too, is the case across the EU. If an ISP is told about a customer's copyright infringement or defamatory statement on pages it hosts, it must take action quickly otherwise it will be liable for the infringement.

The devil, of course, is in the detail. If the proposal is to make ISPs liable whether they know about illegal material or not, that would be an alarming development. Of course we don't know this, which is a flaw in the proceedings that critics are right to point out.

Under the plans, we are told, ISPs will have the chance to win back their immunity from liability if they behave in a certain way, reportedly along the lines laid out in a previous US trade agreement, this time directly with South Korea.

Again, though, that document describes a set-up that stops well short of the doomsday scenarios played out in reports and on blogs.

It says that countries should create "legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials".

According to reports, ACTA also provides that ISPs will have to terminate subscribers "in appropriate circumstances". In the UK, a copyright owner can force an ISP to disconnect a subscriber that the ISP knows to be infringing content. The copyright owner has to prove its case before a court, though – and at this time we don't know that ACTA proposes anything less.

The legislation banning technologies that break content encryption will also be bracingly familiar to UK residents. That, too, is already outlawed here.

The scenarios outlined by protesters against ACTA are truly worrying. But they are also not grounded in the few snippets we have seen. Of course it is entirely possible that they are contained in parts of the text that have not leaked.

When they bemoan the lack of transparency in negotiations, ACTA's critics are entirely right. But the exaggerations, while a perfect illustration of why the secrecy is dangerous, do not always help the critics' case.

By Kim Walker, a partner with Pinsent Masons, the law firm behind OUT-LAW.COM, who specialises in intellectual property law.

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

High performance access to file storage

More from The Register

next story
Android engineer: We DIDN'T copy Apple OR follow Samsung's orders
Veep testifies for Samsung during Apple patent trial
One year on: diplomatic fail as Chinese APT gangs get back to work
Mandiant says past 12 months shows Beijing won't call off its hackers
EFF: Feds plan to put 52 MILLION FACES into recognition database
System would identify faces as part of biometrics collection
Big Content goes after Kim Dotcom
Six studios sling sueballs at dead download destination
Alphadex fires back at British Gas with overcharging allegation
Brit colo outfit says it paid for 347KVA, has been charged for 1940KVA
MtGox chief Karpelès refuses to come to US for g-men's grilling
Bitcoin baron says he needs another lawyer for FinCEN chat
Jack the RIPA: Blighty cops ignore law, retain innocents' comms data
Prime minister: Nothing to see here, go about your business
Singapore decides 'three strikes' laws are too intrusive
When even a prurient island nation thinks an idea is dodgy it has problems
Banks slap Olympus with £160 MEEELLION lawsuit
Scandal hit camera maker just can't shake off its past
France bans managers from contacting workers outside business hours
«Email? Mais non ... il est plus tard que six heures du soir!»
prev story

Whitepapers

Mainstay ROI - Does application security pay?
In this whitepaper learn how you and your enterprise might benefit from better software security.
Five 3D headsets to be won!
We were so impressed by the Durovis Dive headset we’ve asked the company to give some away to Reg readers.
3 Big data security analytics techniques
Applying these Big Data security analytics techniques can help you make your business safer by detecting attacks early, before significant damage is done.
The benefits of software based PBX
Why you should break free from your proprietary PBX and how to leverage your existing server hardware.
Mobile application security study
Download this report to see the alarming realities regarding the sheer number of applications vulnerable to attack, as well as the most common and easily addressable vulnerability errors.