China mostly let off the hook on counterfeits

Hollywood’s Washington lobby had general words of praise for a trade pact among nearly 40 countries that sets a framework for combating piracy worldwide.

But the Anti-Counterfeiting Trade Agreement, a draft of which was unveiled Wednesday after the conclusion of negotiations in Tokyo earlier this week, does not include one key country that has been the bane of studios and music firms for failing to crackdown on flagrant and widespread piracy: China.

The pact also softens earlier proposals on how Internet providers should crackdown on piracy. As such, it leaves greater flexibility rather than specify a so-called “three-strikes” approach in which the plug is pulled on infringers who ignore repeated warnings. The existing language of the pact also says countries “may provide criminal procedures and penalties” for the unauthorized videotaping of movies in theaters — less demanding language than originally sought.

But the final language appeared to assuage some concerns among some tech firms and public interest groups that have been wary of tougher and controversial restrictions on the distribution of digital content and the obligations to crackdown on unlawful material. Gigi Sohn, president and co-founder of Public Knowledge, an interest group often at odds with the studios, said while the pact was “deeply flawed,” it should be considered a “qualified victory” because more egregious provisions from earlier drafts were taken out.

Instead, the agreement includes more flexible language that does not expose Internet providers to much greater liability, and largely contains broader outlines for each individual country to decide the best laws for curbing online copyright theft. Moreover, rather than specify exactly what Internet providers must do, it says each country “shall promote cooperative efforts within the business community” to combat online infringement.

Nevertheless, industry lobbyists see the pact as significant in that it finds common ground among so many countries, including the European Union member states, Canada, Australia, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the U.S. It calls on countries to at least have enforcement procedures in place to “permit effective action” against online infringement, including “expeditious remedies” and those that are a “deterrent to further infringement.” It also calls for civil enforcement procedures setting up means for copyright holders to seek injunctions and damages.

The pact seeks customs officials to seize pirated goods at the border and points of entry, allowing them to “act upon their own initiative.” It leaves it up to individual countries to determine the extent to which officials would seize small quantities of goods in a travelers’ personal luggage.

Neil Turkewitz, executive vice president, international, for the Recording Industry Assn. of America, said in a statement that while the pact “does not provide all of the answers about how governments will move forward to tackle online piracy, it is a very important multilateral statement concerning the importance of finding solutions to online theft. It may not be a precise road map, but it is a powerful expression of a common vision and a unity of purpose.”

Greg Frazier, exec VP of the Motion Picture Assn. of America, said the trade pact was an “important step forward in strengthening international cooperation and enforcement for intellectual property rights.”

“We continue to believe ACTA must include robust protections for intellectual property online, building on established international norms if it is to meet its potential as a state-of-the-art agreement to combat counterfeiting and piracy,” he said in a statement.

U.S. Trade Representative Ron Kirk said late last week negotiators were “almost across the finish line.” But some details and language still need to be worked out, and there is already some opposition from members of the European Parliament. The pact also sets up a committee to review the operation of the agreement. One hope is that its execution will eventually lead to China and other countries coming on board.

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