ACTA - the fair, the bad, and the just plain silly

The full negotiating text of the long-secret 'Anti-Counterfeiting Trade Agreement' has finally been released.

As everyone and her dog has long known, the agreement has little to do with "counterfeiting" as we English-speakers know it ("trying to pass something off as something else"), but is rather about protecting the revenue streams of the US congress by "harmonising" international copyright law. Apparently, the six existing international treaties on the subject just aren't cutting it. True counterfeiting (trademark infringement) does get a mention, but it is very much an afterthought. The real meat is all in 'copyright'.

In the Kafka-esque process of negotiating this secret treaty, there have been several rounds of "consultation" in which we, the public, have been invited - albeit very quietly - to comment on various aspects of the text that we've never been permitted to see. In the last such round, I sent in a short submission to the NZ delegation on the aspect that most bothers me, which is an area known in NZ law as "technological protection measures".

TPMs sound complicated and obscure, but in fact they're not nearly obscure enough. They are what prevents you from playing your Region 1 DVD in a Region 2 DVD player, from using your backup copy of your software CD, from copying the text from your legally-purchased e-book, from saving a streaming media file to your desktop to listen offline.

All of these actions are, at least in NZ and the UK, explicitly permitted by law - that is to say, a copyright holder has no right to prevent us from doing them, without asking permission, even if they want to. Yet TPMs are used to nullify those laws and stop us anyway. And - and here's the kick in the teeth - the publishing industry wants it to be illegal to "circumvent" a TPM, regardless of the circumventor's motives or their use of the product. That is what I'm fighting to keep out of NZ law.

In the event, the text is so convoluted that it's hard to see who's winning. Omitting footnotes, and condensing without loss of meaning (note: ellipses mark excisions for brevity; square brackets are in the original):

Effective technological measure means any technology ... that, in the normal course of its operation, [controls access to a protected work, performance, phonogram, or protects any copyright or any rights related to copyrights.][is controlled by the right holders through application of an access control or protection process such as encryption, scrambling, or other transformation of their works, performances or phonograms, or a copy control mechanism, which achieves the protection objective.]

[4. In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, [performers or producers of phonograms] [the right holder of any copyright or related rights or owner of an exclusive license] in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works... each Party shall provide for civil remedies, [or] [as well as] criminal penalties in appropriate cases of willful conduct, that apply to:

[Each Party shall provide for adequate legal protection and effective legal remedies... against the circumvention of effective technological measures that are used by authors, performers or producers or phonograms in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonogram. These shall apply to:]

(a) the unauthorized circumvention of an effective technological measure [that controls access to a protected work, performance, or phonogram]; and
(b) the manufacture, importation, or circulation of a [technology] ... that is: [marketed] or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than...

I think I begin to see why the Americans finally agreed to let this be published. The various options and alternate clauses are so divergent, I could be headed for a famous victory or a disastrous defeat; it's literally impossible to tell.

A TPM may be something that "controls access to a protected work... protects any copyright or any rights related to copyright [name three - Ed]". Or alternatively, it may be something that "is controlled by the right holders through application of an access control or protection process". It doesn't take a Hallam or a Holmes to see that these are two very different definitions - one based on what it does, the other on who does it. Then comes a third definition, much better than either of these: measures "that restrict unauthorized acts in respect of [protected] works".

It would be tremendous vanity to see my own fingerprints here, but that last version is exactly what I'm aiming for: tying TPMs to the limited set of rights that they are allowed to protect. An act that is explicitly protected by law cannot be "unauthorized" - therefore, something that restricts it is not a TPM within the meaning of this text.

All is not lost. There is plenty of text here that, if allowed to stand, would make a decent, liberal, liveable treaty. There is also some extremely bad text that, if allowed to stand, would enforce a new world order in which you could no longer lay claim even to the contents of your own memory. Which way will it go?