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The Anti-Counterfeiting Trade Agreement: DAM Providers Beware

by Naresh Sarwan on April 16, 2010

The Anti-Counterfeiting Trade Agreement is currently being negotiated “in secret” and is a proposed trade agreement for establishing cross-border standards on IPR enforcement ostensibly to limit the trade in counterfeit goods (in particular intellectual property).    ACTA’s scope covers many areas including counterfeit products, generic medicines, and internet piracy.  The agreement is being supported by the European Union, European Commission, European Parliament, The G8 and a range of industry groups who have IPR interests (including media owners and pharmaceutical companies).

What does this mean for the Digital Asset Management industry?  This post by Cory Doctorow summarises some of the general implications for service providers:

“ACTA goes way, way beyond the TRIPS (the copyright/patent/trademark stuff in the World Trade Organization agreement), creating an entirely new realm of liability for people who provide services on the net. Since liability for service-providers determines what kind of services we get, increasing their liability for copyright infringement will make it harder to invent new tools like web-lockers, online video-hosting services, blogging services, and anything else that’s capable of being used to infringe copyright.”[Read More]

Clearly, DAM systems and solutions are repositories of intellectual property, therefore, organisations that either supply or make available Digital Asset Management technology may become liable for any infringement under ACTA.  The approach taken by many DAM systems is a ‘hands off’ advisory role where access to assets may be limited but it is assumed that the user will take a certain amount of personal responsibility when assets are downloaded.

Whether this will continue to be sufficient is debatable and it may have wide ranging consequences for the design of DAM systems and how flexible vendors can afford to be without placing themselves at risk of litigation – simply for providing a product that meets their client’s specifications.

In this post, patent attorney, Stephen Kinsella notes that ACTA includes a number of other hidden or well-disguised provisions that present a number of direct threats to personal liberty and may have implications for developers of DAM technology:

The ACTA is also similar to another arcane law, the Digital Millennium Copyright Act (DMCA), which, under the guise of protecting “property rights,” snuck in provisions that criminalize even the mere possession of technology that can be used to circumvent digital protection systems. [Read More]

The consensus amongst most governments is that this can be passed without “changing existing law” (i.e. no debates or democratic processes):

…various governments, including the EU, Canada, and the USA, have argued that there is nothing in ACTA that will change domestic law — that it’s just a way of forcing everyone else to adopt their own laws. What we see here, though, is a radical rewriting of the world’s Internet laws, taking place in secret, without public input. Public input? Hell, even Members of Parliament and Congressmembers don’t get a say in this. The Obama administration’s trade rep says that the US will sign onto ACTA without Congressional debate, under an administrative decree. [Read More]

Over the forthcoming months, we will continue to cover ACTA and the implications for the Digital Asset Management industry.

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