Despite the best efforts by certain participants
in ACTA negotiations to keep everything a secret, that's not really working. We've already seen leaks
of the documents in progress, but now comes a leak of a document highlighting the actual wordsmithing
of some sections, including the specific positions taken by different countries. You can download the pdf directly
or see the embedded version here (most of the document should be read in landscape mode, and I don't see any easy way to make that possible in Scribd, so downloading may be preferred):
A lot of what is happening in the document is inside baseball negotiations, but it does highlight which countries are questioning which elements of ACTA. It's interesting (and a bit troubling) that some countries (including the US) seem to want to make sure that certain parts of ACTA don't just cover copyright/trademark but all "intellectual property" (meaning patents as well -- something that had been rumored, but not confirmed). Not surprisingly, the US is using ACTA not as just a counterfeiting enforcement tool, but to wedge in a variety of intellectual property issues into other countries. As you dig into the document, though, you see how much little changes to the wording can impact huge differences. For example, in discussing damages, the US keeps wanting to insert the word "shall" while the EU, Canada and New Zealand want "may" with regards to whether or not there should be statutory damages on infringement, or if it can be limited to actual damages. Basically, it looks like the US is looking to force other countries to set up an equivalent of (much higher than actual) statutory damages, rather than having courts ask rights holders to show actual damages.
Michael Geist has a list of some other interesting tidbits
, and Jamie Love has worries about how the damages section 2.2 is much stricter
than existing laws, and seems to conflict with
existing US laws
(but ACTA can't change US law, right? Right?). Love also notes the oddity of the EU crossing out
language (inserted by the US, mind you) that would protect "fair use, fair, dealing, or their equivalents."
All in all, documents like these show why these discussions need to be public. Very very minor word choices can have a major impact. And hiding all of that behind closed doors is a huge problem.