Guest post: Lights, Camera, ACTA(ion)

Continuing from his previous guest post, Amlan Mohanty brings us a follow up post on the ACTA, attempts at harmonization, and using New Zealand’s example to oppose certain measures at the international level.

The Anti Counterfeiting Trade Agreement, Country specific responses and Lessons for India

In this post, I intend to bring out the overlapping issues with regard to the Anti Counterfeiting Trade Agreement (ACTA), the specific provisions dealing with technological protection measures (TPM’s) and anti-circumvention contained therein, the responses of participating countries (specifically New Zealand) and finally the proposed amendments to the Indian Copyright Act. While that does seem to be quite a handful, the point of intersection illuminates the simple fact that while India has seemingly succumbed to the pressure of American imposed copyright protection standards, not all countries are as willing.

What is the Anti Counterfeiting Trade Agreement?
The Anti Counterfeiting Trade Agreement (ACTA), previously discussed in these posts, is a proposed trade agreement steered towards intellectual property enforcement and establishment of international standards in this regard for participating countries, and is expected to be completed later this year. The negotiations relating to the ACTA have played out, remaining true to its country of origin, like an American sitcom, in short suspense-filled episodes, with leaked provisions and government documents being the only sources of information, but providing ample fodder for blogosphere debates on the subject.

What is New Zealand’s current copyright law?

Recently, I had written a post about Technological Protection Measures (TPM’S) being introduced in the proposed amendments to the Indian Copyright Act, in which I highlighted some fundamental concerns that emerged from the inclusion of such a provision. New Zealand’s copyright statute seems to have accounted for the exact same fears I had expressed in my post, with the adoption of a remarkably modern, sensitive and flexible anti-circumvention model. For example, the TPM’s expressly exclude access controls such as regional coding, so that a DVD bought in New Delhi will play in New Jersey. The concerns about TPM’s trampling on fair dealing rights is also assuaged with express provisions permitting circumvention in such situations (including for encryption research). The suggestion to obligate copyright owners or other qualified persons (such as librarians and educational institutions) to circumvent robust TPM’s for permitted purposes, also finds place in the legislation, along with other laudable provisions such as the allowance of format-shifting.

What is the potential effect of ACTA on the copyright laws of New Zealand?
I will restrict my analysis to merely the provision relating to TPM’s and anti-circumvention. I reproduce the draft text from the chapter on ‘Enforcement procedures in the Digital Environment’ [Article 2.17(4)] available here:

In implementing Article 11 of the WIPO Copyright Treaty and Article 18 of the WIPO Performances and Phonograms Treaty regarding adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, performers or producers of phonograms in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonograms, each Party shall provide civil remedies, as well as criminal penalties in appropriate cases of willful conduct that apply to:

(a) the unauthorized circumvention of an effective technological measure that controls access to a protected work, performance, or phonogram; 

(b) the manufacture, importation, or circulation of a technology, service, device, product, component, or part thereof, that is: marketed or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than circumventing an effective technological measure.

While the present copyright statute in New Zealand contains criminal offence provisions in limited circumstances, where circumvention of a TPM is for large-scale ‘commercial’ dealing in copyright material, the  ACTA, much like the DMCA, would make the manufacture and circulation of devices that would circumvent such TPMs a separate criminal or civil offence for consumers using such tools, introducing new substantive elements into New Zealand’s copyright regime and allowing access controls to  rights holders, which they do not currently possess. At the same time, there does not appear to be any obligation for hardware manufacturers to ensure interoperability of TPM’s. While the ACTA itself does not change domestic laws of the participant nation, it does create an international obligation to harmonise domestic laws with the international standards contained in it.

What is the position of New Zealand in the ACTA negotiations?

The belligerent attitude of the negotiators representing New Zealand at the ACTA negotiations is what caught my attention immediately and cajoled me into writing this post, especially in the background of the proposed amendments to the Indian Copyright Act, and the government’s desire to introduce TPM and anti-circumvention measures through them. Since I run the risk of not effectively capturing the wonderfully articulated argument on the part of the New Zealand negotiators, I reproduce the text below: [For the full text, see page 37 of a spectacular leaked document (available here) containing the responses of various countries, the first real glimpse into the actual ACTA negotiations]

“NZ: The paragraphs refer to “adequate legal protection” as well as remedies, which is inconsistent [with] the objective of ACTA to establish standards for the enforcement of intellectual property rights and the ACTA discussion paper. In particular, we note that the discussion paper refers only to parties providing “remedies against circumvention of technological protection measures used by copyright owners and the trafficking of circumvention devices.”

New Zealand does not support protection being mandated against circumvention of TPMs where the underlying work is not protected by copyright. In particular, we do not support protection against circumvention of access control TPMs because access control is not an exclusive right given to copyright owners.”

I will attempt a very brief explanation of their argument. Their response must be read in conjunction with the ACTA provisions relating to TPM’s [Article 2.17(4)]. This provision, advocated by the US, seeks to introduce a DMCA-styled provision, which extends far beyond the mandate of the WIPO Copyright Treaty. While the WCT, only allows for legal protections and remedies to rightholders where TPM’s restrict those circumvention acts that are not permitted by law, the language in the DMCA suggests that legal protection is to be accorded to the circumvention of even those TPM’s that are permitted by law e.g, making a backup copy of a DVD onto my iPod. It is in this context that the objections raised by the New Zealand negotiators maybe properly understood. To simplify it further, they say that ‘access controls’ is one such measure that does not deserve legal protection or remedy since it is NOT an exclusive right granted to a copyright holder, in New Zealand at least.

It must be pointed out that New Zealand is not alone in its protests, and is joined by Japan and the EU in opposing such a restrictive mechanism. Such a forceful stand, especially at the international stage, is indeed commendable.

Why is the position of New Zealand at the ACTA negotiations analogous to India’s position with regard to the Copyright Act amendments?

New Zealand like India, is not party to the WIPO Copyright Treaty, and as discussed above has taken strong  exception to the imposition of DMCA-styled provisions in not only its domestic legislation, but so also in its international obligations. Thus, New Zealand wishes to remain within the realm of its international obligations, since accepting the ACTA provisions in its current form, would be antithetical to its domestic copyright laws. India, similarly, is party only to the TRIPS agreement and yet, the recent press release on the copyright amendments suggests that the government is looking to introduce TRIPS+ standards into its domestic legislation. What is to say that some day, the Indian government will not go one step further and adopt WCT+ standards and liken the domestic legislation to the failed and repressive DMCA?

While it is true that New Zealand has had the benefit of several parliamentary debates, standing committee reports and commentaries to guide them in their assessment of the ACTA provisions (thus being able to transplant the experience gained in their domestic legislative exercise with regard to TPM’S and anti-circumvention into the international level) and it is perhaps unfair to expect the same rigour from India in its first legislative exercise on the point, it is undeniable that India has a lot to learn from the ACTA negotiations.

What can India learn from the entire episode?

In contrasting the positions of India and New Zealand in their approach towards international treaties and their acceptance of the standards they impose, I believe a valuable lesson stands to be learnt. New Zealand, determined to remain faithful to its domestic legislation, went all guns blazing at the ACTA negotiations, refusing to accept measures like the protection of access controls. India must take a cue from them and debate the provisions in the Indian Copyright Act relating to technological protection measures and anti-circumvention, before it is passed, in light of the ACTA negotiations and ensure that unnecessarily restrictive measures do no figure in the final Act.

On a possibly unrelated note, the issue of transparency emerged several times in the context of the ACTA negotiations and it must be noted that several factions, including members of parliament in New Zealand, have questioned the need for secrecy in such negotiations. The Indian government has been criticised for the lack of transparency  in relation to the Copyright Act amendments, with the draft bill magically disappearing from the Copyright Office website and new provisions being sneaked into the bill without public debate or consultaion. While the two situations discussed are admittedly of different magnitudes and situated in different contexts, it would serve the Indian government well to track these discussions and realise that ultimately, transparency and public participation is essential.

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