In early November, negotiators from the United States, Japan, the European Union, Canada and a select handful of other nations huddled together in a closed-door session in Seoul, South Korea.
It was the latest in a continuing effort to hammer out a new global treaty ostensibly aimed at cracking down on the traffic in counterfeit goods. But the proposed Anti-Counterfeiting Trade Agreement (ACTA) in fact has little to do with counterfeiting, or even with trade for that matter. It is instead a copyright treaty that would fundamentally ratchet up legal protections for rights-holders. If a deal is reached, it could have serious implications for heavy users of copyrighted material, including students, teachers and researchers. ACTA has been inexplicably shrouded in secrecy since talks were launched two years ago. The lack of transparency is perplexing because, after all, we’re talking about a copyright treaty, not state secrets. Or so it would seem. In fact, the U.S. government refused a request from two public interest groups – the Electronic Frontier Foundation and Knowledge Ecology International -- to release information on the treaty for reasons of “national security”. Despite the best efforts of those involved to keep the public in the dark, there has been a steady stream of leaks about the content of ACTA. We don’t know everything about ACTA, but we’re getting a pretty good picture of what’s being planned. According to a leaked background note and a European Commission briefing paper, we know that the primary goal is to create new international copyright rules that go far beyond what currently exist in treaties under the United Nations’ World Intellectual Property Organization (WIPO). The deal would establish a new global institution with a secretariat and with a legally-binding dispute resolution process. ACTA would grant border guards increased powers to search people and personal property, including laptops and other electronic devices, raising some serious privacy concerns. It would create criminal provisions that would apply not only to the commercial infringement of copyright, but also to infringement for non-financial gain, such as educational, research, and personal uses. ACTA would also set strict new rules related to Internet material. The proposed provisions would oblige governments who sign on to the deal to adopt a “three strikes and you’re out” rule. This would require that Internet service providers cut off subscribers after three allegations of copyright infringement. For educators, this would apply to material posted on a site for students, for instance. And if you’re accused of breaking copyright rules, you won’t get a court date or have a chance to appeal. It would only take three unproven allegations for an ISP to be legally required to suspend your account. The treaty would provide legal protection for digital locks and security protection on material, provisions that draw upon the U.S. Digital Millennium Copyright Act (DCMA), but extend far beyond existing international law. As some American teachers and researchers have learned the hard way, these so-called “anti-circumvention” measures have had the unintended consequence of stifling scientific research. Since the DCMA has been in force, a number of computer scientists researching software and network security have faced lawsuits and criminal prosecution as a result of their legitimate research activities into anti-circumvention technologies. It’s clear there is much at stake for educators and students around the world. If a deal is reached, ACTA would ratchet up and lock-in onerous restrictions on copyrighted works. It would further narrow the meaning of fair use, making it more difficult for teachers and students to access and use material for education purposes. If extended to the developing world, the treaty could dramatically reshape domestic copyright law – in effect exporting the worst features of the DCMA. In many countries where textbooks and educational materials are scarce or prohibitively expensive, teachers and students have little choice but to infringe copyright in order to access the information and resources they need. If this access is cut off or restricted by a legally binding treaty, the impact on classroom instruction could be devastating. It comes as little surprise then that the impetus for ACTA began at the same time that developing countries, through WIPO, began pressing for a new pro-development approach to international copyright rules that would allow for broader exceptions for educational and research purposes. Set against this light, ACTA represents the new frontline in an emerging global battle over copyright. The good news is that ACTA isn’t a done deal. There’s still time to demand greater transparency and to press for a more balanced approach to global copyright rules. Educators have a unique role to play in this debate. As teachers, we understand well the need for a robust global information commons, where ideas and knowledge exist not simply as property but also as the shared heritage of humanity. David Robinson is associate executive director of the Canadian Association of University Teachers and a consultant on higher education and trade with Education International, the global federation of teachers’ unions.