ACTA and the Specter of Graduated Response
University of Idaho College of Law
October 15, 2010
American University International Law Review, Vol. 26, No. 3, pp. 558-577, Fall 2011
PIJIP Research Paper No. 2
This article considers the evolution of ACTA’s “digital environment” provisions in the context of concerns raised early in the negotiations that the agreement would require signatories to mandate graduated response regimes for online copyright enforcement (à la France’s controversial HADOPI system). The Consolidated Text of ACTA released in October 2010, following the final round of negotiations in Japan, contains no provision mandating the adoption of graduated response. Such regimes are tacitly endorsed in the agreement, however, through language in the preamble and the digital environment provisions concerning the promotion of greater cooperation between rights owners and service providers. Moreover, opponents of graduated response should be wary of the fact that public law mechanisms — be they domestic or international — are not the only means by which graduated response can effectively become the law for Internet users. The United States and Ireland provide examples of the trend toward private ordering in the project of online copyright enforcement.
Number of Pages in PDF File: 20
Keywords: ACTA, three strikes, graduated response, ISP, copyright enforcement, infringement, piracy, file-sharing, eircom
JEL Classification: K42, K39, L82, O34, O38, O33Accepted Paper Series
Date posted: June 1, 2010 ; Last revised: September 2, 2011
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