After years of negotiations, several leaks regarding the text of the treaty, and resulting public pressure to soften what have been perceived by many to be some of its more excessively pro-industry components, on April 20, 2010, the countries negotiating the Anti-Counterfeiting Trade Agreement (“ACTA”) released a draft of the document for public review. That draft is available here. The intent of ACTA’s drafters is to establish international standards on the enforcement of intellectual-property rights in the participating countries. (ACTA’s current drafters include Australia, Canada, the European Commission, Japan, Jordan, Mexico, Morocco, New Zealand, North Korea, Singapore, Switzerland, the United Arab Emirates, and the USA.)
ACTA includes a number of provisions that indeed may have a significant impact on the enforcement of IP rights worldwide. One of the more interesting of those provisions is a proposed grant of safe harbor to Internet service providers (“ISPs”) hosting infringing content due to the actions of the ISPs’ customers, provided that the ISPs take action to remove that content following their receipt of notice that it is present on their servers. Such a provision could end up being similar to Section 512 of the U.S. Digital Millennium Copyright Act (“DMCA”), under which a content owner can send a notice to an ISP regarding the presence of infringing content on the ISP’s servers, in response to which the ISP must take action in order to maintain its safe harbor status.
At this stage, ACTA remains a rough draft in which the safe harbor options have yet to be confirmed. In addition, ACTA does not include steps as detailed as those under the DMCA to guide the form and substance of take-down notices, instead leaving those steps to the discretion of the member countries, within certain bounds. However, the overall outline of safe harbor under ACTA could be fairly similar to that under the DMCA, with safe harbor being conditioned under one option as follows (text in brackets remains unresolved):
an online service provider expeditiously removing or disabling access to material or [activity][alleged infringement], upon receipt [of legally sufficient notice of alleged infringement,][of an order from a competent authority] and in the absence of a legally sufficient response from the relevant subscriber of the online service provider indicating that the notice was the result of mistake or misidentification.
It will be very interesting to see how the ACTA negotiators resolve the issue of ISP liability and safe harbor. Businesses that have encountered infringing, third-party content hosted by U.S. ISPs have for several years been able to take advantage of Section 512 notices under the DMCA to cause the removal of that content in an efficient and cost-effective manner. However, foreign ISPs often do not have much to gain by compliance with U.S. copyright law, so the same procedures generally have been less effective against content hosted outside the U.S. An effective safe harbor provision under ACTA may change that.