Canada should not ratify ACTA

I have drafted a new submission to Foreign Affairs and International Trade Canada for their ongoing consultation (skip to bottom) on the deceptively named Anti-Counterfeiting Trade Agreement (ACTA). I haven't yet sent it in to the department, but want to generate discussion.

It is available anonymously as a Google Doc as well as a PDF from my webserver.

If you are looking for SOPA/PIPA or C-11 comparisons, please note that ACTA contains beyond-WIPO protection for TPMs and thus includes the harmful effects I discussed in my comparison between Bill C-11 and SOPA/PIPA?.

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Here's what I sent recently

Thank you for the opportunity to comment on this very important agreement.

I believe that it would be a mistake for Canada to ratify ACTA.

It is interesting that even the description provided by your department conflates the two very different issues of “counterfeiting” and “copyright piracy”. The simple facts are that :
- counterfeiting itself is a fairly small problem
- counterfeiting that causes actual harm to people (e.g. of medicines or aircraft parts) is a very small part of that problem
- parallel or grey imports are often included in the statistics for counterfeiting, despite theses actually being beneficial, rather than detrimental, to the purchaser
- counterfeiting of consumer goods such as clothing and handbags has not been shown to cause any harm to the producers of the genuine products. Studies have shown that most of these purchases are made with the knowledge that the item being bought is not genuine and are “aspirational” in nature, with many purchasers buying the genuine article when they can afford it
- copyright piracy has not been demonstrated to cause any actual harm to anybody. The majority of independent studies show that it has either no effect or a small positive effect on sales of the pirated products
Overall, the fundamental premise of this agreement is flawed, based on conflating counterfeiting and copyright piracy in order to conflate the damage of the former and the scale of the latter.

I am a firm believer in free trade and market forces. As such, it pains me to see the spectre of “counterfeiting” used to change laws to block parallel imports, for example. Forcing companies to compete globally is a good thing. If a business depends on selling goods cheaper in other countries than in Canada, they should not be able to use the law to prevent Canadians from buying abroad at the cheaper price. Similarly, Canadian law should protect purchasers from technologies like the DVD “Region encoding” scheme that attempt to prevent parallel imports (New Zealand is a great example here).

The Internet needs to be recognized as the greatest tool for free speech ever created, and protected as such. Before doing anything to restrict freedom of speech on the Internet, there needs to be a very definite need, proven by multiple independent researchers. The restrictions themselves need to be very narrowly focused to ensure that they do not cause any “collateral damage”. The government got this exactly right in Bill C-11 by adopting the “notice-and-notice” approach to copyright infringement, ensuring that due process was respected while giving rightsholders the tools that they need to enforce their exclusive rights online.

Copyright infringement is a very complex issue, and it important to note that it takes a court to determine whether a particular copy of a work is infringing or not. In many cases, even copyright lawyers will honestly disagree about whether a particular work is infringing or not, and there have been many documented cases of music companies issuing DMCA takedown notices in the US for copies that they themselves put there. This is certainly not something that a customs officer or law enforcer is going to be able to accurately determine, and we should not be wasting taxpayer money in trying to give them the ability to somehow distinguish infringing from non-infringing works. For similar reasons, copyright infringement should always be a civil, rather than criminal, matter. Any harm is clearly isolated to the rightsholder, and they are in the best position to determine how to react to it (many rightsholders welcome the free distribution of their works). To use taxpayer money and limited law enforcement resources to investigate and prosecute copyright infringement as a criminal matter would be a huge mistake.

Finally, I believe that the process by which ACTA was drafted is sufficiently bad that that alone would justify Canada not ratifying the agreement. There was no justification for the level of secrecy. There was also no justification for it not to have been done through the World Intellectual Property Organization or the World Trade Organization.

Turing to the actual text of ACTA, the main problems are as follows.

Article 9 bases damages on the assumption that every infringing copy represents a lost sale, an idea that has been soundly debunked by a number of studies.

Article 12 places undue emphasis on measures to prevent infringement, with absolutely no recognition of the importance of not restricting the constitutional right to freedom of expression. In many cases in the last few years, we have seen meritless copyright infringement claims used to remove criticism that is clearly protected speech. Canadians recognize freedom of expression as a charter right, and as such it is clear that if preventing possible copyright infringement may restrict freedom of expression, the conduct needs to be allowed to continue until it has been determined by a court that it is, in fact, infringing.

Article 16 simply gives rightsholders too much power. While it is clearly reasonable for them to have the right to obtain a court order to prevent goods from moving across the border, this section grants them broad powers to effectively give orders to customs officials. Unfortunately the provisions in articles 17 and 18 that appear to be intended to ensure that these powers are not abused are insufficient and do not mandate any penalties for such abuse. The only response to an abuse of the powers granted to rightsholders in this section is that the application may be rejected, and the possible forfeiture of a bond to cover loss or damage. I expect this ability to interfere with the shipment of competitors goods with no recourse to be widely abused by large corporate rightsholders, costing both their competitors and Canadian taxpayers a lot of money. Overall, this article seems likely to impede the transit of goods across international borders when we should be reducing any such impediments.

Article 23 criminalises copyright infringement on a commercial scale as well as aiding and abetting thereof. It provides no definition of “commercial scale”, and it is easy to see that this could be used to make it criminal to accidentally make works available online if they are downloaded by a large number of people. The “aiding and abetting” provisions will also be abused against tools that, while not designed for copyright infringement, can be used for it. This will have disastrous consequences for online innovation. Had this provision been enacted 30 years ago, the music industry would no doubt have made it impractical to even provide an email service because email certainly has been used to send infringing copies of copyrighted works to many people. This article also introduces the idea that it may be a criminal act to show a movie to some friends. That is profoundly un-Canadian.

Article 24 then establishes that imprisonment has to be a possible penalty. I do not believe that Canadian prisons should be filled with people who have infringed copyright, developed or provided tools that were abused to do so, or with people who failed to secure a license to show a movie.

Article 27 introduces a similar prohibition on bypassing of Technological Protection Measures (TPMs) as is in Bill C-11, that effectively gives rightsholders free reign to decide which of the rights granted to users in the Copyright Act they will actually allow them to exercise, and to take additional rights for themselves that are not granted to them in the Act (e.g. to prevent the sale of used goods or the use of works once they have entered the public domain). The rights granted to users in the Copyright Act are essential to balance out the rights granted to copyright holders. As such, this provision is completely backwards – the government should be ensuring that rightsholders cannot use TPMs to prevent purchasers from exercising the rights granted to them in the Copyright Act. This article also contains similar provisions making tools illegal. It is interesting that the commercial nature of tools is considered in deciding whether they should be illegal. It appears that non-commercial tools that can be used to bypass TPMs would always be illegal. As a software developer, I use many such tools (for example the gdb debugger) in my day-to-day work.

Article 31 appears to be based on the unproven assertion that intellectual property infringement is always detrimental. I would hope that taxpayer money is never used to distribute propaganda that benefits certain business models. I believe that taxpayer money should only be spent on educating the public when there is a definite benefit to Canadians as a whole. Educating Canadians about the dangers of smoking and the benefits of healthy eating clearly qualify. Preaching “the importance of respecting intellectual property rights” seems mostly to benefit large foreign rightsholder organizations. Let them pay for their own advertising.

Overall, ACTA does significantly more harm than good, and many of the changes it would lead to are regressive. I believe that Canada should not ratify ACTA, and ideally should withdraw from it altogether. I remain hopeful that ACTA will never come into force at all.

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