[liberationtech] ACTA Digital Chapter and DRM protection provisions

[Andre Rebentisch]

 The proposed ACTA agreement is made publicly available and negotiators
tell the public draft text was "final".
http://www.ustr.gov/about-us/press-office/press-releases/2010/october/statement-ambassador-ron-kirk-regarding-public-rel

I strongly doubt so because substantial definitions and scope
limitations are still found in footnotes. I am also puzzled about the US
PublicKnowledge appraisal of the narrowed "final" draft
(http://bit.ly/dhFPIE), it appears to have little relation to reality.
Please check how a conclusion of the agreement may stifle legitimate
uses of technology or effect the legal environment. A few European NGOs
are very vocal on the prospect of internet filtering inducement via
ACTA. Provisions such as

"...each Party shall provide protection at least against: (a) to the
extent provided by its law: (i) the unauthorized circumvention of an
effective technological measure carried out knowingly or with reasonable
grounds to know; and (ii) the offering to the public by marketing of a
device or product, including computer programs, or a service, as a means
of circumventing an effective technological measure; and (b) the
manufacture, importation, or distribution of a device or product,
including computer programs, or provision of a service that: [baseless
conditions]"

clearly go beyond the current European 2001/29/EC regime and you may
wonder how the implementation of ACTA would affect reverse-engineering uses.


---snip ---
Article 2.18
2. Each Party’s enforcement procedures shall apply to infringement of at
least trademark and copyright or related rights over digital networks,
**including the unlawful use of means of widespread distribution for
infringing purposes**. These procedures shall be implemented in a manner
that avoids the creation of barriers to legitimate activity, including
electronic commerce, and, consistent with each Party’s law, preserves
fundamental principles such as freedom of expression, fair process, and
privacy.13

13 For instance, without prejudice to a Party’s law, adopting or
maintaining a regime providing for limitations on the liability of, or
on the remedies available against, online service providers while
preserving the legitimate interests of right holders.

-- snip --

5. Each Party shall provide adequate legal protection and effective
legal remedies against the circumvention of effective technological
measures14 that are used by authors,
performers or producers of phonograms in connection with the exercise of
their rights in, and that restrict acts in respect of, their works,
performances, and phonograms, which
are not authorized by the authors, the performers or the producers of
phonograms concerned or permitted by law.

6. In order to provide such adequate legal protection and effective
legal remedies, each Party shall provide protection at least against:
(a) to the extent provided by its law:
(i) the unauthorized circumvention of an effective technological measure
carried out knowingly or with reasonable grounds to know; and
(ii) the offering to the public by marketing of a device or product,
including computer programs, or a service, as a means of circumventing
an effective technological measure; and
(b) the manufacture, importation, or distribution of a device or
product, including computer programs, or provision of a service that:
(i) is primarily designed or produced for the purpose of circumventing
an effective technological measure; or
(ii) has only a limited commercially significant purpose other than
circumventing an effective technological measure.15

14 For the purposes of this Agreement, technological measure means any
technology, device, or component that, in the normal course of its
operation, is designed to prevent or restrict acts, in respect of works,
performances or phonograms, which are not authorized by authors,
performers, or producers of phonograms, as provided for by a Party`s
law. Without prejudice to the scope of copyright or related rights
contained in a Party`s law, technological measures shall be deemed
effective where the use of protected works, performances or phonograms
is controlled by authors, performers, or producers of phonograms through
the application of a relevant access control or protection process, such
as encryption or scrambling, or a copy control mechanism, which achieves
the objective of protection.
15 In implementing paragraphs 5 and 6, no Party shall be obligated to
require that the design of, or the design and selection of parts and
components for, a consumer electronics, telecommunications, or computing
product provide for a response to any particular technological measure,
so long as the product does not otherwise contravene any measures
implementing these paragraphs.

7. To protect electronic rights management information,16 each Party
shall provide adequate legal protection and effective legal remedies
against any person knowingly
performing without authority any of the following acts knowing, or with
respect to civil remedies having reasonable grounds to know, that it
will induce, enable, facilitate, or
conceal an infringement of any copyright or related right:
(a) to remove or alter any electronic right management information
(b) to distribute, import for distribution, broadcast, communicate, or
make available to the public copies of works, performances, or
phonograms, knowing that electronic rights management information has
been removed or altered without authority.


16 For purposes of this Article, electronic rights management
information means:
(a) information that identifies a work, performance, or phonogram; the
author of the work, the performer of the performance, or the producer of
the phonogram; or the owner of any right in the work, performance, or
phonogram;
(b) information about the terms and conditions of the use of the work,
performance, or phonogram; or
(c) any numbers or codes that represent the information described in (a)
or (b) above, when any of these items is attached to a copy of the work,
performance, or phonogram or appears in connection with the
communication or making available of a work, performance, or phonogram
to the public.

-- snip --

Grüße,
André

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