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Canada vs. New Zealand at the ACTA Talks

By Michael Geist

Yesterday's ACTA leak that provides full detail on each country's negotiation position attracted immediate media attention, with the New Zealand press picking up on the story (and that country's tough position), while the Australian press lamented their country's relative silence at the negotiation table.  And what of Canada?  The Canadian positions on the Internet chapter culled from the EU leaked document are:

• expresses concern with the disparity between the section title and the scope of content of the section
• seeks clarification of the scope of "related rights" in provision dealing with a general enforcement obligation. Argues that it should be consistent with the Criminal and Civil Enforcement chapters
• concerns with a footnote on third party liability that seeks to define its scope.  Canada notes that the footnote effectively changes the meaning of the main text.
• seeks more information on the scope of "modification" to the content in a provision on online service providers
• notes that the relationship between third party liability and ISP limitation on liability is unclear
• seeks clarification of the relationship of anti-circumvention exceptions to access control measures

That's it.  Compare the Canadian focus on clarifications of legal language and hints at opposition with the far-tougher, more explicit New Zealand positions:

• on the preamble: "the words 'in order to facilitate the continued development of an industry engaging in providing information services online' provide an interpretative gloss on Article 2.17.3 which appears to go beyond the general aim of ACTA to provide a framework for the enforcement of intellectual property rights
• on safe harbours: "we understand [Paragraph (a)(iii) covers information location tools such as search engines.  It is not clear how the provision or use of information location tools breaches copyright, or why third party liability should arise for the provision of such tools.  We would welcome further explanation on the need to provide such a safe harbour."
• on establishing a policy that could lead to three strikes: "New Zealand does not support the inclusion of this condition.  New Zealand can, however, support the inclusion of a provision aimed at preventing a party to ACTA conditioning safe harbours on an online service provider "monitoring its services or affirmatively seeking facts indicating that infringing activity is occurring."
• on anti-circumvention rules: "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 only refers 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 underlyig 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."
• on rights management information: New Zealand does not support the protection of RMIs extending to information that identifies a performance, the performer of the performance, the owner of any right in the performance, or the producer of a phonogram."

Why is the Canadian delegation content to say virtually nothing and leave it to New Zealand to take the strongest position on these ACTA issues?  Why does Canada not join with New Zealand to present a stronger front against the extension of ACTA far beyond copyright enforcement?

Full post as published by Michael Geist on March 02, 2010 (boomark / email).