ACTA official text, re: software patents

Here it is: tradoc_146029.pdf. We owe a big thanks to the government employees who risked their jobs by leaking previous versions. Without those leaks, our governments probably wouldn’t have agreed finally to show us the text. (on en.swpat.org, there’s related info at ACTA overview.)

Below are some initial thoughts.

The requests for change, marked by square brackets, do not mention which country requested that change. For this, the previous leaks (best: 201001 acta.pdf as text) are still useful.

The content, regarding software patents

(see also: en.swpat.org/wiki/ACTA_and_software_patents)

  • It doesn’t contain any requirement about what must be covered by patents (or copyright, etc.). So this treaty doesn’t stand in the way of getting software removed from patentability. Text, page 2: "It is understood that this Agreement does not create any obligation on a Party to apply measures where a right in intellectual property is not protected under the laws and regulations of that Party."
  • When it says "intellectual property", it includes patents. Text, page 3: "intellectual property refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the Agreement on Trade-Related Aspects of Intellectual Property Rights." – although point 5 on page 4 suggests changing this to per-section definitions.
  • The damages to be paid by infringers can include the "lost profits" (page 5, section 2.2, subsection 1.b) and payment of court fees (page 6, Option 1).
  • Distruction of your computer? Text, page 7: "materials and implements the predominant use of which has been in the manufacture or creation of infringing goods be, without undue delay and without compensation of any sort, destroyed or disposed of".
  • There’s a lot of mentions of "knowingly infringing" – this sounds like patent holders have the power to raise the threat level by sending you a warning letter. Is this how the DMCA brought cease-and-desist letters to the USA in such a big way?
  • Patent infringement is not included in the list of things criminalised. Good news. (Page 15, first paragraph). And "Inciting, Aiding and Abetting" also does not apply to patent infringement.
  • Third-party liability. The first paragraph of page 19 discusses this, but I can’t understand what it says. I’ll read it again later.
  • The paragraph that spans the end of page 20, start of page 21, has a proposed requirement that Internet service providers would have to block things if they have "reasonable grounds to know that the infringement is occurring" – this might mean that patent holders could get software blocked without having to prove the infringement before a judge.
  • This idea is repeated in a proposal mid-way down page 21: "online service provider expeditiously removing or disabling access to material or alleged infringement, upon receipt of legally sufficient notice of alleged infringement". If they don’t do this, then they lose the protection given to them in the previous "(a)" sections (for which there’s an option 1 and an option 2).
  • There’s a proposal to give patent holders the power to get personal information about users from an Internet service provider: "Each Party shall enable right holders, who have given effective notification to an online service provider of materials that they claim with valid reasons to be infringing their copyright or related rights, to expeditiously obtain from that provider information on the identity of the relevant subscriber"
  • P 27, bracketed proposal, section 5: "State parties shall endeavour to provide technical assistance in the following areas: Promoting the culture of intellectual property. […]".
  • Withdrawl, at least in theory, seems easy: "A Party may withdraw from this Agreement by means of a written notification to the Depositary. Such withdrawal shall take effect six months after the notification was received by the Depositary.".

Other people’s analyses

These all focus on copyright aspects.

UPDATE: this entry was originally named ACTA draft text officially released.