Wednesday, November 04 2009 @ 07:29 AM PST
Contributed by: Richard Pitt
Back in the late 1960s and early 1970s I worked for the local telephone company, BC Tel. At that time (and now too) it was designated a "common carrier" which amongst other things meant that if someone used its facilities to perform an illegal act, the telephone company could not be held liable or chaged as an accessory. I, as a technician, was told that only if I "in the course of my normal duties" witnessed an illegal act was I to report it. I was NOT allowed or encouraged to go looking for them.
In 1991 through 1996 I was co-owner of Wimsey.COM - Canada's first commercial Internet Service Provider (ISP) and Internet Access Provider (IAP) (started in 1986 by my partner, Stuart Lynne). At that time, and to this day, ISPs have worked toward the goal of also being a "common carrier" - in this case of information, not just telephone conversations (and faxes) - a fairly trivial distinction in today's wired age.
Common carriers are subject to special laws and regulations which differ depending on the means of transport used, e.g. sea carriers are often governed by quite different rules than road carriers or railway carriers. In common law jurisdictions as well as under international law, a common carrier is absolutely liable for goods carried by it, with four exceptions:
An act of nature
An act of the public enemies
Fault or fraud by the shipper
An inherent defect in the goods
It is the concept of non-liability for "Fault or fraud by the shipper" that concerns us here.
The recently leaked wording of the ACTA - the Anti-Counterfeiting Trade Agreement - that is in secret negotiations between the USA and many other countries of the world including my home, Canada, will put a 100% kibosh on that if the US has its way.
Included in the wording of the treaty is the concept of 3rd party liability for ISPs whose systems are used by anyone who breaks copyright rules. The application of this treaty would follow that of the Digital Millenium Copyright Act (DMCA) in the US where "notice and takedown" provisions have been used to assault free-speech and competition - but unlike the US where there are legal fall-backs, the treaty would not provide things like fair use (Us Copyright law) or fair dealing (Canada's Copyright law) which partially offset this draconian measure.
In fact, the wording seems to make the ACTA more of a copyright act rather than an anti-counterfeiting act and imposes US (lobbyists') rules on other countries using the trade might of the US to shove them down the throats of otherwise non-US citizens.
Everyone should write their MP (or local federal representative in other countries) and express their complete dismay that the Canadian foreign Affairs negotiators are even thinking about signing a treaty that so affects our copyright regime - recently expressed by Minister Tony Clement, the Industry Minister, as "...fully consistent with its international obligations" (Michael Geist)
The USA should not be allowed to foist its broken concepts of copyright and intellectual property rights on other countries disguised as some sort of trade agreement. Don't get me wrong - the concept of tracking and bringing to justice wholesale counterfeiters (those who make and sell fake copies of everything from dollar bills to purses, prescription drugs and yes, even music and video recordings) is well worth while and should be done via trade agreement. Just don't use this "nose of the camel" to introduce radical changes to legislation that affects otherwise law-abiding citizens of other countries where the legislative checks and balances that the US has in its constitution provide at least some mitigation for their otherwise wacky DMCA. Canada does not have fair use for example, and the fair dealing we do have does not help us as individuals against a DMCA-like act!