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Anti-circumvention and ISP liability provisions in Free Trade Agreements.
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Anti-circumvention and ISP liability provisions in Free Trade Agreements.


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  • 1. Anti-circumvention and ISP liability provisions in Free Trade Agreements Dr. Ian Brown, University College London
  • 2. US FTA IP chapters
    • Present in FTAs with Jordan, Singapore, Chile, Bahrain, Australia and Morocco
    • Also in Central America-Dominican Republic-United States Free Trade Agreement (CAFTA), and the Free-Trade Area of the Americas (FTAA) draft treaties
  • 3. Key US and EU legislation
    • US Digital Millennium Copyright Act 1998
    • EU E-Commerce Directive (2000) and Copyright Directive (2001)
  • 4. DMCA circumvention definitions
    • to `circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
    • a technological measure `effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
  • 5. WIPO Internet treaties
    • “ Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.”
  • 6. Anti-circumvention exceptions
    • access by a nonprofit library, archive, or educational institution to a work not otherwise available to it, for the sole purpose of making acquisition decisions;
    • noninfringing activities for the sole purpose of identifying and disabling a capability to carry out undisclosed collection or dissemination of personally identifying information reflecting the online activities of a natural person in a way that has no other effect on the ability of any person to gain access to any work; and
    • noninfringing uses of a particular class of works when an actual or likely adverse impact on such noninfringing uses with respect to such particular class of works is credibly demonstrated in a legislative or administrative proceeding, provided that any exception adopted in reliance on this clause shall have effect for a period of not more than four years from the date of conclusion of such proceeding.
  • 7. Commission on Intellectual Property Rights
    • “ We believe developing countries would probably be unwise to endorse the WIPO Copyright Treaty , unless they have very specific reasons for doing so, and should retain their freedom to legislate on technological measures. It follows that developing countries, or indeed other developed countries, should not follow the example of the DMCA in forbidding all circumvention of technological protection. In particular, we take the view that legislation such as the DMCA shifts the balance too far in favour of producers of copyright material at the expense of the historic rights of users . Its replication globally could be very harmful to the interests of developing countries in accessing information and knowledge they require for their development.”
  • 8. ISP liability
    • Intermediaries such as ISPs would have great difficulty functioning if they were responsible for all content carried over their networks
    • Nor are they are able to a priori vet all material made available from their servers
  • 9. ISP liability
    • Limited for transmitting and caching copyright works by DMCA s.512 and ECD Arts. 12/13 and Copyright Directive Art. 5(1) (“mere conduit”)
    • Limited for unwittingly hosting copyright works by DMCA s.512 (“notice and take-down”) and ECD Art. 14 (“actual knowledge”)
    • No obligation to monitor under ECD Art. 15
  • 10. ISP liability limits in FTAs
    • “ Each Party shall provide … limitations in its law regarding the scope of remedies available against service providers for copyright infringements that they do not control, initiate, or direct”
    • “ The limitations shall be conditioned on the service provider… expeditiously removing or disabling access to the material residing on its system or network on obtaining actual knowledge of the infringement”
    • “ Eligibility … may not be conditioned on the service provider monitoring its service, or affirmatively seeking facts indicating infringing activity”
  • 11. FTA IP provisions go too far
    • Pascal Lamy: "I am seriously concerned by some of the free trade agreements recently adopted between industrialised countries and developing countries: some of their IP provisions go far beyond their level of development and reduce worryingly their options of making use of the TRIPs flexibilities."