Full ACTA Draft Leaked... EU Wants Injunctions Against The Possibility You Might Infringe

from the well,-look-at-that dept

As a whole bunch of folks have been submitting, the text of a recent draft of ACTA has been leaked (pdf). It didn't take long for some to convert the entire document to text, so that it can be analyzed and discussed more easily. Lots of folks are digging through the details, and turning up various gems. Michael Geist explores the different proposals concerning border searches of your iPod or other electronic devices. One of our readers, Robin, highlighted some specifically troubling points in the document. For example, on page 4, option 2 (submitted by the EU) includes:
The Parties shall also ensure that right holders are in a position to apply for an injuction against intermediaries whose services are used by a third party to infringe an intellectual property right.
Talk about a massive increase in secondary liability -- something that negotiators have insisted was not in ACTA and that we were all crazy to suggest it. Note that there are no caveats here. No limitation if there are substantial non-infringing uses. And, it even goes beyond direct liability to allowing an injunction against third parties. This clause would outlaw Google. Thankfully, New Zealand specifically has come out against this proposal and Canada questions the statutory limitations.

Then on page 7, in Article 2.5 (Provisional Measures), we've got a whopper of a suggestion from the EU:
Each Party shall provide that its judicial authorities shall have the authority, at the request of the applicant, to issue an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right.
Yup, you got that right. They want to let anyone block the possibility of future infringement. That goes way beyond the law today, and reaches into "pre-crime" scenarios out of Minority Report.

And yes, both of those proposals came from the EU, whose chief negotiator just this week insisted that no such things were in the document, and that it was all exaggeration by people on the internet. He also claimed that the EU had nothing to hide, but now that the document is out, we can see why they were very much hiding it. Anyway, I'm sure additional troubling parts of the document will be highlighted pretty quickly.

Filed Under: acta, eu, imminent infringement, infringement, leaks

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  1. identicon
    C.T., 24 Mar 2010 @ 1:19pm

    Re: Re: "This clause would outlaw Google"

    The prior sentence provides context to the scope of the injunctions that must be made available -- injunctions "aimed at prohibiting the continuation of the infringement" must be made available. The Article clearly doesn't mandate the broad sort of injunctions that you are intimating (i.e. injunctions that are not narrowly tailored to the infringement in dispute).

    Again...I do not doubt that there are reasons to be concerned about ACTA, but it just seems that most of the assertions made about how outlandish it is ring pretty hollow upon inspection.

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