[See the UPDATE at the end of this message]
With the release of leaked versions of the proposed Anti-Counterfeiting Trade Agreement (ACTA), opposition to the drafting process continues to grow. Recently IFLA issued a statement arguing that while it is appropriate for governments to act to stop commercial counterfeiting, the copyright and patent issues at stake in ACTA would be better addressed through the World International Property Organization (WIPO). They also object to the secrecy of the negotiations. The Library Copyright Alliance (LCA) has also been active in its opposition to ACTA, most recently joining in a letter complaining about provisions in the leaked text and issuing a statement of LCA concerns. Earlier, Janice Pilch had prepared an issue brief on ACTA for the LCA.
One thing that I have not seen in the library association statements is any mention of the border control measures found in Article 2 of the draft text. In spite of the assurance of the U.S. Trade Representative that ACTA would not require alterations to U.S. law, the draft border measure provisions seem in conflict with Section 602 of the Copyright Act. For example, the draft Article opens with the assurance that travelers may import copyrighted material when it is for non-commercial purposes and included in their personal baggage. This mirrors part of the exception found in 602(a)(3)(B) of the Copyright Act, which allows people to import or export personal copies in their baggage. Some of the proposed language in ACTA, however, would limit such importation to the duty-free allowance, a limitation not found in U.S. law. More importantly, there appears to be no provision that would allow individuals to import books and movies directly from abroad, as the current law does; there would be no more ordering books from Amazon.de or Amazon.fr for your personal use.
In addition, the leaked text contains no exception for libraries. Under 602(a)(3)(C), non-profit libraries may import up to 5 copies of a foreign book or record for lending and archival purposes, and 1 copy of a foreign movie for archival purposes. As it stands, ACTA would eliminate the ability of libraries to purchase foreign material directly from foreign distributors unless those distributors had been expressly authorized by the copyright owner to distribute the work in the U.S.
In the leaked text, the sections jump from Article 2.x to Article 2.6. We can hope that library exceptions are included in the missing articles. But the border measures section are just one more example why the secret ACTA negotiations are a bad idea.
UPDATE: Jonathan Band was kind enough to explain to me that "border measures" are different than "copyright exemptions." If I understand the distinction properly in theory even under the current law, the Customs Bureau could seize a shipment of books or movies to a library as being an importation violation. The library could then petition for the release of the material, using its exemption in 602. Jonathan argues, probably correctly, that nothing in ACTA would change this. The 602 exemptions will still exist.
I won't argue with him as a matter of law. I am more worried about whether ACTA may lead to a change in practice. For example, the current "border measures" found in 19 CFR 133 authorizes the Customs Bureau to seize "infringing copies.” These are narrowly defined: pirated copies that “are unlawfully made (without the authorization of the copyright owner).” Could ACTA encourage a broader definition, one that might encompass the marketing behaviors of publishers, and hence encourage more seizures at the border (even if eventually the law would allow that content to enter)? If there is no need to specify the library exemptions in ACTA, why are the drafters including the personal exemptions found in 602?
Jonathan is probably right that my worries are unfounded - but I am going to read closely the promised full draft treaty when it is released on 21 April.