ACTA and the Specter of Graduated Response

Abstract

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.

Keywords: ACTA, three strikes, graduated response, ISP, copyright enforcement, infringement, piracy, file-sharing, eircom

JEL Classification: K42, K39, L82, O34, O38, O33