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Has the U.S. Caved on Secondary Liability in ACTA?

By Michael Geist

Following the ninth round of ACTA negotiations in Lucerne, Switzerland in July, it became apparent (after the updated ACTA leaked) that the U.S. had caved on some of its demands to include DMCA-like anti-circumvention language in ACTA.  The ACTA provisions still go further than the WIPO Internet treaties by mandating the inclusion of provisions to address circumvention devices, but the treaty moved much closer to the EU approach and became more consistent with the WIPO Internet treaty flexibilities. This represented a major shift for the U.S. and was clearly a loss from what it hoped to achieve within ACTA.

With the tenth round of ACTA negotiations now complete, there is no leaked document (yet), but there are rumours that the U.S. has now caved on secondary liability.  If true, this would represent an even bigger setback for the U.S., which included references to a three strikes and you're out approach in the initial drafts of the Internet chapter. Secondary liability has proven consistently problematic, however, since many ACTA countries deal with the issue in different ways. The rumour now is that provision will be very general in nature, leaving considerable flexibility in implementation.

The ACTA partners committed last week to trying to wrap up the negotations when they next meet in Japan late in September.  Having backtracked on many of its key Internet chapter demands, the U.S. is clearly desperate to conclude a deal. The battle over the scope of the treaty remains, however, and that issue is the one that will ultimately determine whether a final text is concluded one month from now.

Full post as published by Michael Geist on August 26, 2010 (boomark / email).