Could Cybercrime Treaty Already Push Through Some Of The Worst Of ACTA?

from the international-obligations dept

One of the important aspect of the leaked copy of the ACTA draft a little while back was that it also included what each of the different parties was pushing for in terms of language choices. This part of the draft was conveniently missing from the "official" draft that was released recently. But, if you looked through the different changes being pushed for by different countries, you quickly realized that definitions mean everything. The different wording seemed to only differ slightly, but depending on how you defined different terms, the actual meaning could be night and day. And, indeed, supporters of ACTA have been working overtime to make reading the draft seem innocuous, while making sure that the definitions make ACTA much more powerful.

Among the concerns is how "criminal copyright infringement" is defined -- specifically, what counts as "commercial scale." In ACTA, there's been an attempt to define commercial scale as broadly as possible, including copying for personal use.

Richard points us to some news down in Australia, where there's some concern that Australia's recent decision to sign on to a European cybercrime treaty, could force it to define criminal copyright infringement extremely broadly, along the lines of ACTA -- effectively getting that part of ACTA agreed to with or without ACTA. In other words, as plenty of folks interested in this stuff have been focused on ACTA, was the entertainment industry able to back door this really bad aspect of ACTA into many countries via the Cybercrime treaty already?


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  1.  
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    Marcel de Jong (profile), May 4th, 2010 @ 12:39am

    I keep coming to a point of why do we even bother.
    These crooks will still be able to push through legislation that's not by the people nor for the people, only to prop up prehistoric businessmodels.

    We've seen multiple attempts at getting software patent laws in the EU (they even tried to push it through an agricultural committee).
    We've seen multiple attempts at getting horrible copyright laws that only serves corporate interests that have nothing to do with "helping the artists", the latest one being ACTA.
    And I have the distinct feeling that we are losing the war.

    Yes, we should keep on fighting this legislation, but every blow we deliver them, sets them back one step, only to have them get two steps forward again a few months later.

    I'm more for global civil disobedience. To heck with the corporate copyright holders, if they don't want to understand the changing market, they have no right to my money. I'd rather spend my hard-earned money on movies and artists who do get it, than spend it on acts that think they are entitled to their money, as if it's a foregone conclusion.

     

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  2.  
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    Anonymous Coward, May 4th, 2010 @ 1:21am

    Yep, Marcel. It seems that there's a lot of money to be made if they can find the right thing to call management's failure to rejigger their business model and convert what probably is only 3-5% of non-paying customers into customers.

    The way things are going, it won't be long before they re-package it as the "Anti-Baby Cannibalism Treaty". Because when you don't pay for content, it's not because it sucks, it's because you're eating the artist's ability to make money and feel confident enough to have babies.

     

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  3.  
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    Ronald J Riley (profile), May 4th, 2010 @ 3:33am

    ACTA is an outrage.

    Most of the time when Mike talks about IP he is left field but this time he has written something I completely agree with.

    ACTA is an outrage. Many of the companies pushing it are hypocrites, because they are ripping off people's inventions while at the same time trying to increase their rights using really sleazy tactics.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  4.  
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    Niall (profile), May 4th, 2010 @ 4:35am

    Thank you Ronald! Nice to agree with you for once, given your obviously strong beliefs in your point of view. Now, if we can get more general pro-strong copyright/patent people to back calls against ACTA and its sneaky outliers, that would be great.

    Copyrights, patents and trade marks all have their uses - so it is all the more important to have those who support them being strong-but-fair working with those who like them weaker - but still fair. Because the fairness, transparency and democratic debate seem to be what is missing here.

     

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  5.  
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    Wonders never cease, May 4th, 2010 @ 5:24am

    Re: ACTA is an outrage.

    Common ground

     

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  6.  
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    Anonymous Coward, May 4th, 2010 @ 5:49am

    The rise of VPN will be unstoppable. The corporate Nazi's can choke on it.

     

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  7.  
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    packrat (profile), May 4th, 2010 @ 5:58am

    actra

    I remember when mickysoft claimed 80% of the windows out in the wild were illegal copies.

    and when computers did what they were told to do, not what the gov't wanted them to do. (linux emulated everything from commadore disks to unix programs. NOT a game-boy, eh?)

    japan's history of a 15 year leap in applied tech (cd drives, gig net speeds) PLUS india's customer base, PLUS china total disregard for royalities..

    all your dvd area-1 players belong to us, right?

    packrat

     

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  8.  
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    Dark Helmet (profile), May 4th, 2010 @ 6:21am

    Re: ACTA is an outrage.

    Ron, what can I say, other than I completely agree with you here. It's extremely important for folks who fundmentally disagree on a matter of degree when it comes to IP law not to allow that disagreement to fuel completely abhorrent legislation by parties that really probably don't have much interest in either of us.

    Cheers Ron. Nice to see your at least honest about your positions, disagree with most of them though I might....

     

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  9.  
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    Anonymous Coward, May 4th, 2010 @ 7:41am

    Did anyone forget to mention that 95 year corporate copyright terms are too short and that if ACTA doesn't substantially extend them to at least 200 years all artists would starve to death and art would cease to exist?

     

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  10.  
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    Anonymous Coward, May 4th, 2010 @ 8:31am

    Push through the "worst of ACTA"? Please. (Mike, this post has a hint of Fox News abaout it - repeating preposterous claims in the guise of "asking questions".)

    No, the COE Cybercrime Convention does not implement the "worst of ACTA." We may disagree over which particular bit of ACTA is the worst, but it sure isn't criminalization of infringement committed "on a commercial scale." Why? Because that language was agreed to 15 years ago as part of the TRIPS agreement, and so every country currently involved in ACTA, as well as everyone country who's signed the cybercrime convention, has already agreed to it. (Australia signed TRIP on the firsy day of 1995.) The only thing the cybercrime convention added to TRIPS was to require that countries signing on criminalize infringement committed via the internet to the same degree they had already criminalized meatspace infringement. (Does "meatspace" sound all 1990s-era Wired-magazine dotcommy? Well, that slang was still hip back when this language was first agreed to to.)

    EFA, bless their hearts, are doing yeoman's work fending off all sorts of whacky laws down in Australia, but what they're saying about the cybercriem treaty being a backdoor for ACTA makes no sense. "Commercial scale" is indeed open to interpretation, and different countries have interpreted it different ways, but Australia has already agree to that language. Some industry groups may prefer a "two copy rule," but the cybercrime treaty doesn't give them a way to get it that they don't already have. EFA is also quoted refering to the ifnormation sharing parts of the cybercrime treaty, as though they provide some srot of US-style DMCA where copyright owners can get info from ISPs in other countries. If EFA has a legal basis for that claim, it would be great to see it. But it sure doesn't seem to be anywher ein the actual cybercrime convention text.

     

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  11.  
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    Anonymous Coward, May 4th, 2010 @ 8:36am

    Re:

    So without clarifying what Australia agreed to when it agreed that "commercial scale" infringement was a crime, how can you say with a straight face that "commercial scale" could just as easily be defined as a person making a personal copy?

     

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  12.  
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    Joel (profile), May 4th, 2010 @ 9:39am

    ACTA

    is scary...I can't help but wonder what is going to happen. That is all I have to say my brain hurts when ACTA is spoken of.

     

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  13.  
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    Anonymous Coward, May 4th, 2010 @ 9:53am

    ACTA is an "outrage" if you happen to live in a country where copyright law and its enforcement is so lax that for all practical purposes the law is meaningless.

    In the US there are particularly egregious situations where copyright law contains criminal sanctions. The prima facie elements of the crime are very limited.

    It is important to realize that US authors and foreign authors are treated the same under US law. An author from China is entitled in the US to the same legal protections for his/her copyright as is any else in the US. It did not always used to be this way (the original Copyright Act of 1790 is but one example).

    The same cannot be said in many foreign countries, and I see nothing wrong with the promotion of various proposals to address this clear imbalance.

     

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  14.  
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    Anonymous Coward, May 4th, 2010 @ 10:13am

    Re:

    Foreign countries not involved in ACTA: India and China.

    That's pretty funny for a "treaty" that covers counterfeiting.

     

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  15.  
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    Anonymous Coward, May 4th, 2010 @ 11:27am

    Re: Re:

    China was used as but one of many examples of countries where copyright law within the country is all but meaningless. Whether or not it is associated with ACTA is irrelevant for purposes of the point being made.

    By placing "treaty" in quotes I hope this is not to signify that it is a treaty and not a trade agreement. Under US law the two are entirely separate and distinct, with the former once ratified being entitled to the full force and effect of law, whereas the latter enjoys no such status.

     

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  16.  
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    Ronald J Riley (profile), May 4th, 2010 @ 4:46pm

    Actually I sent the following to Mike some time ago.

    Mike Masnick,

    We have a bit of common ground :)

    This is a memo I sent to inventor activists concerning ACTA and the US Chamber. I have copied the contents of an attached letter after their pitch to me. I can email the same with the attachment if you want it. It is likely that the US Chamber got the inventor group mailing list from UIA which was recently taken over in a coup by a group of people who are not interested in inventor interests.

    == My memo to the inventor community ==

    See the appended documents below my reply. The US Chamber and the USTR are trying to get America's inventors to carry their ACTA water. ACTA is being promoted using the same sleazy tactics which have been used for years to promote the Patent Deform agenda of the Coalition for Patent Piracy & Fairness and the Coalition for 21st Century Patent Deform & HARMonization.

    The US Chamber has a long history of representing really big business interests to the detriment of small entities like independent inventors. They have done their best to foist Patent Deform on us and are proponents of HARMonization.

    And while they claim to represent chambers across the country, the reality is that their membership is a very very small percentage of the total number of chambers because they do not represent the interests of small business which is the backbone of both local chambers and the small businesses who are the backbone of America's competitiveness.

    Adding insult to injury is the fact that much of the public's anti inventor sentiment is driven by attempts of copyright holders, big business copyright holders to increase scope of their rights. Especially egregious have been their attempts to limit fair use such as making personal copies of content which the public has purchased.

    I do not believe that stealing content is right but I also think that once someone has purchased rights that the seller should not be trying to steal their purchaser's rights and that is what is happening. The Anti-Counterfeiting trade agreement does nothing to protect our rights, in fact it is an attempt to further erode all of our rights. Rather than supporting this all inventors should vocally oppose the trade agreement.

    Also, many of the same companies trying to extend their copyrights are also stealing patent property rights from small inventors. They are large transnational corporations who whine about their rights while at the same time stomping on inventor's rights. And every time an inventor holds them accountable they then whine about vicious mythical trolls.

    There is no upside in inventors helping the US Chamber and there is considerable downside.

    Obama's Administration has either been duped or otherwise incentivized to sell out small entity inventors. The Administration has been stacked with transnational stooges of those companies pushing Patent Deform. Kappos has been working hard to create doubt about Patent Deform. He has marshaled the full force of the USPTO and used our fees to our detriment while at the same time wanting to increase fees. Whenever Kappos tells you something is good for inventors remember that he spent his career at IBM and that today IBM is a shadow of its former self. IBM floods the patent system with thousands of patent applications for minor incremental inventions to the detriment of small entities. IBM was the second large company behind Microsoft demanding Patent Deform and now their man is running the USPTO.

    UIA has also fallen under Kappos' spell, and like so many organizations which started with good intentions it appears that UIA has been willing to get in bed with both invention promoters of questionable track records and to curry favor with the likes of Kappos to all of our detriment. This is a very common fate of organizations who are co opted by people who use them to promote their own self interests. In fact this is the same issue which led the USPTO into their current crisis.

    It behooves all inventors to not trust anything which either the US Chamber or Kappos has to say. They are not our friends!

    Ronald J. Riley,


    I am speaking only on my own behalf.
    Affiliations:
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.

    --------------------------------------------------------------------------------
    From: Keeley Hozjan [mailto:khozjan@waggeneredstrom.com]
    Sent: Monday, March 15, 2010 12:16 PM
    To: RJR@InvED.org
    Cc: HELP@InvEd.org
    Subject: US Chamber of Commerce opportunity


    Hi Mr. Riley,

    My name is Keeley Hozjan, and I am writing on behalf of the U.S. Chamber of Commerce with a request and opportunity. Hopefully this email can be addressed by either you or the general help email.

    We are currently working to send a letter of support (attached) from business owners around the country to U.S. Trade Representative Ron Kirk, highlighting the importance of intellectual property (IP) to business of all shapes and sizes. It expresses our support for a robust Anti-Counterfeiting Trade Agreement (ACTA), particularly for small businesses.

    This letter not only will help ensure the competitiveness of American business going forward, but provides an opportunity for your organization to be highlighted as one of 100 IP supporters nationwide.

    You can tell Rep. Kirk that InventorEd supports an ambitious and comprehensive ACTA by signing onto this letter. To do so, please respond to this email and we will include your organization as a signatory (there is NO cost or anything like that involved with this!).

    For more information on ACTA, please see below. If you have any questions, please feel free to contact me at (425) 638-7032. I will call to follow up on this email in a few days to ensure it was received.

    Best regards,

    Keeley

    Keeley Hozjan | Public Affairs Practice | 425.638.7032 | khozjan@waggeneredstrom.com

    ****

    Anti-Counterfeiting Trade Agreement

    What is the Anti-Counterfeiting Trade Agreement?

    In 2006, the U.S. and several key trading partners who are committed to fighting counterfeiting and piracy began negotiations on the Anti-Counterfeiting Trade Agreement (ACTA). This initiative aims to enhance international cooperation and establish more effective international standards for enforcing intellectual property (IP) rights.

    ACTA seeks to build on existing international rules in the area of IP, in particular on the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), and is intended to address a number of enforcement areas where participants have identified that an international legal framework does not exist or needs to strengthened.

    Who is involved?

    Current negotiating parties include: Australia, Canada, the European Union (European Commission, the EU Presidency, and Member States), Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the U.S.

    When will ACTA be Completed?

    The Office of the United State Trade Representative (USTR) plans to complete ACTA by the close of 2010.

    What is the U.S. Chamber of Commerce’s Position on ACTA?:

    The U.S. Chamber of Commerce’s Global Intellectual Property Center (GIPC) supports the Administration’s efforts to conclude an ambitious and comprehensive ACTA that will result in robust enforcement of IP rights. Specifically, we believe the agreement should do the following:

    · Builds upon existing international rules and norms, in particular on the TRIPS, to produce measurable improvements in the prevailing legal and enforcement frameworks for the protection of IP rights;

    · Complements IP provisions of recent FTAs, especially those with Korea and Oman;

    · Includes robust provisions to confront IP theft in both physical and online environments; and

    · Includes an effective and credible mechanism to monitor and provide incentives to encourage parties’ compliance with obligations.

    How You Can Help?

    Tell Rep. Kirk that you support an ambitious and comprehensive ACTA by signing onto this letter. To do so, please send an email to Keeley Hozjan (khozjan@waggeneredstrom.com) and she will include your company as a signatory. If you have any questions, please feel free to contact her at (425) 638-7032.

    Where you Can Find More Information?

    For more information on ACTA, please visit USTR’s website at http://www.ustr.gov/acta

    == Copy of the attached letter appended below ==


    April 1, 2010

    The Honorable Ron Kirk
    U.S. Trade Representative
    600 17th Street NW
    Washington, DC 20508

    Dear Ambassador Kirk:

    The undersigned businesses applaud your efforts to negotiate the Anti-Counterfeiting Trade Agreement (ACTA) and urge you to continue to work diligently toward concluding a robust agreement by the close of 2010.

    Intellectual property (IP) rights have helped the United States become the world leader in innovation by encouraging businesses of all sizes to take risks and enabling them to attract investment to develop exciting new products and services. Not only has this innovation improved citizens' lives, but the IP-intensive industries have become the backbone of the 21st century American economy, employing nearly 18 million workers, accounting for more than $5 trillion of the gross domestic product, and comprising more than 40 percent of all exports.

    However, these innovative and creative sectors are under attack by sophisticated criminal networks around the world that profit from counterfeiting and piracy, at the expense of the American economy. This illicit activity threatens the sustainability of businesses of all sizes, but particularly small and medium sized businesses, which often operate on tight margins and lack the resources to effectively defend their IP rights on their own.

    If the administration is to achieve its goal of spurring economic recovery through doubling exports over the next five years it is imperative to more effectively combat counterfeiting and piracy. We believe that successfully concluding an ambitious and comprehensive ACTA would be a significant step in the right direction. Specifically, we believe the agreement should:

    - Recognize the contributions of small businesses to the global economy and the importance of IP rights to businesses of all sizes.

    - Build upon existing international rules to produce measurable improvements in the prevailing legal and enforcement frameworks for the protection of IP rights;

    - Complement IP provisions of recent free trade agreements, especially those with Korea and Oman;

    - Include robust provisions to confront IP theft in both physical and online environments; and

    - Include an effective and credible mechanism to monitor and provide incentives to encourage parties’ compliance with the agreement.

    We thank you for your efforts on this important endeavor and firmly believe that concluding the ACTA will protect U.S. jobs, American consumers, and will stimulate the U.S. economy.


    Sincerely,

     

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  17.  
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    Hephaestus (profile), May 4th, 2010 @ 5:17pm

    Re: ACTA is an outrage.

    "ACTA is an outrage. Many of the companies pushing it are hypocrites, because they are ripping off people's inventions while at the same time trying to increase their rights using really sleazy tactics."

    Ron are you okay? Was that sarcasm?

    I really can't believe I am saying this but I whole heartedly agree with you. Reaching across the isle in situations where liberty, and multiple violations of constitutional law are about to occur is very important.

     

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  18.  
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    Hephaestus (profile), May 4th, 2010 @ 5:35pm

    Re: ACTA

    "is scary...I can't help but wonder what is going to happen."

    SSDD - Same sh!t different day. They are going to implement it. Its going to be used as an excuse to increase monitoring of people, people will be arrested and perp walked to make examples, constitutional issues will be raised, the cops will use it to roust people but otherwise ignore it, people will die because their internet connections have been shut off and they use VOIP, in the end it will fail horribly. Copyright will eventually go back to a statute of queen anne 1709 style and fair use will be defined. This will come about in two ways, challenges to the constitutionality of ACTA, and-or people collaborating around it.

     

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  19.  
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    Ronald J Riley (profile), May 4th, 2010 @ 6:02pm

    Re: Re: ACTA is an outrage.

    No sarcasm, I meant what I said.

    Those who create content do deserve to be fairly compensated. But once they have been compensated the purchaser deserves to receive fair value.

    The real problem is that big business has become unaccountable. And creators rather musicians or inventors like myself are being used and abused by these big business interests.

    Patent deform has been promoted using the same sort of underhanded tactics used to push ACTA.

    The end result is that our government is no longer representative and we do have the best government money can buy.

    I have been visiting members of Congress for over fifteen years and I have had the pleasure of knowing many honest members. They are not all for sale. But some are and just like big corporations the scum does seem to always rise to the top.

    One more point, the USTR has been selling America's inventor interests out for the whole time. Lip service with nothing substantial.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  20.  
    identicon
    Abdul Nasir, May 5th, 2010 @ 5:22am

    Hard working

    Dear Sir,

    you are very hard working.i impressed your work.you help the peoples....

     

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  21.  
    identicon
    Anonymous Coward, May 5th, 2010 @ 7:37am

    Re: Re:

    I'm not clear whether the post above (11) is a response to post 10, but if the question is directed at post 10, here goes:
    Australia agreed to criminalize infringement at least to the extent that it was "willful infringement on a commercial scale" as part of the TRIPS Agreement (Article 61), which it signed Jan. 1, 1995. "Commercial scale" is not defined in that agreement.

    The cybercrime convention requires that participating countries provide criminal penalties for infringements committed willfully, on a commercial scale, by means of a computer system. Again, "commercial scale" is not defined.

    So the cybercrime conventiond oesn't change what Austrlia agreed to, other than extending it to computer systems (which Australia already does).

    One might say ACTA could change things, because there's some suggested text (and as the EU copy of the text notes, we don't know who suggested it) that would say what "commercial scale" includes, such as "significant" infringement or infringement committed for commercial purposes. This sort of language is how the US reads "commercial scale," but not perhaps how some other countries interpret that phrase. But Australia already has a free trade agreement with the US that contains this same language, so it wouldn't be new for Australia.

    If Australia's government wants to make personal copying a crime it can, but the cybercrime convention won't force it to.

     

    reply to this | link to this | view in thread ]


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