New version of secret copyright treaty text leaked

A French group has published a document purporting to be a January draft of the Anti-Counterfeiting Trade Agreement

A leaked document appears to have brought a swift response to calls from the European Commission and the New Zealand government on Monday for greater transparency in the negotiation of the Anti-Counterfeiting Trade Agreement. The document suggests that the countries party to the secret negotiations still disagree on measures to police and curb illegal file sharing.

Late on Tuesday, French advocacy group La Quadrature du Net published a document purporting to be a draft of the complete text of the copyright treaty, complete with notes outlining the different positions of the parties to the negotiations.

The PDF file, apparently created from a scanned or faxed paper version, purports to be the text of a joint U.S.-Japanese proposal, containing all comments and edits received from other parties to the negotiation. It is dated Jan. 18, just days before the seventh round of discussions took place in Guadalajara, Mexico, from Jan. 26 to 29. An earlier leak, consisting only of the Internet chapter of the text, was said to be based on an October draft circulated ahead of the sixth round of discussions, held in Seoul last November.

One of the key issues for many Internet users and civil rights activists is whether the treaty will oblige signatories to introduce so-called "three strikes" or graduated response laws requiring ISPs to cut off subscribers accused repeatedly of illegally downloading copyright materials. France has already introduced such a law, and similar measures are now under discussion in other countries, including the U.K. and Ireland.

Clause 2.17.3 of the October document stated that ISPs should not be held responsible for copyright infringement where they were acting as a conduit, or where they were unaware that the material they were caching or hosting for their customers infringed copyright.

However, that clause went on to suggest that ISPs should only benefit from such "safe harbor" if they implement an "appropriate" policy, described in a footnote as "providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat offenders."

In the corresponding section of the January document, a comment attributed to Japanese negotiators notes on page 28 that "The present legislation of Japan does not require an ISP to adopt and implement a "policy" so Japan is now examining how to adjust [the footnote] to Japanese legislation or vice versa."

Another comment appeared to suggest that New Zealand did not support the requirement for a "three strikes" policy, and indeed wanted to go further still, giving an ISP safe harbor without any requirement for "monitoring its services or affirmatively seeking facts indicating that infringing activity is occurring."

Deciphering the intentions of the negotiating parties from the many overlapping and conflicting comments is complicated by the document's reference to a color code of "comments in green; additions in blue; deletions in red": the leaked document is only in black and white.

As La Quadrature du Net warned, the document "may not reflect the current state of the negotiations but it provides the public with an interesting overview of the whole agreement [and] background on the positions of the different parties."

More information may be forthcoming: On Monday the European Commission promised to propose a motion at the next round of discussions, to be held mid-April in Wellington, New Zealand, calling for the opening up of the secretive agreement. A New Zealand government minister also promised Monday to publish the text of the agreement -- but only after it was settled and passed to national parliaments for ratification.

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Peter Sayer

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