The Anti-Counterfeiting Trade Agreement

The Anti-Counterfeiting Trade Agreement (“ACTA”) has been under negotiation since October 2007. Over the past three years a group of nations, including the United States, have deliberated the specific contents and composition of this document designed to establish stronger intellectual property enforcement on a global scale. At the Tokyo round of negotiations this month, a near final draft was published and the intellectual community has responded with a balanced spiritedness.

What is the ACTA?

The purpose of the ACTA negotiations is to create a plurilateral agreement establishing an international system that improves intellectual property rights (“IPR”) enforcement laws. The primary objective of the treaty is to create a legal framework with international standards that can enforce IPR laws against large-scale infringement as a means to further innovation, quality and creativity within knowledge based economies (PDF). According the United States Trade Representative (PDF) the

ACTA will bring together countries that recognize the critical importance of strong IPR enforcement for a prosperous economy. The ACTA is envisioned as a leadership effort among countries that will raise the international standard for IPR enforcement to address today’s challenges of counterfeiting and piracy. The ACTA will build upon the Administration’s prior bilateral and regional cooperation successes.

Countries can join this legal framework on a voluntary basis as a response “to the increase in global trade of counterfeit goods and pirated copyright protected works.”

The three primary components (PDF) of the ACTA are:

1) international cooperation;

2) enforcement practices and;

3) legal framework for enforcement of IPRs

A fact sheet published in 2008 expounds the proposed approach through which the negotiating nations aspire to achieve these IPR enforcement objectives with the ACTA. The negotiations highlight the importance of globally aligning enforcement practices amongst all parties within the framework. The Legal Framework Areas (PDF) for provisions of such goals are:

1) the creation of formal or informal public/private advisory groups,

2) fostering of specialized intellectual property expertise within law enforcement structures to ensure effective handling of IPR cases, and

3) measures for raising consumer public awareness about the importance of IPR protection and the detrimental effects of IPR infringements.

The organization of the proposed legal framework is as follows:

1) Civil Enforcement: providing courts and other authorities the ability to take specific actions when it is established a party has violated intellectual property laws and rules on how and when to use those powers.

2) Border Measures: allowing customs and other authorities to take and prevent goods that infringe on intellectual property rights from crossing country borders.

3) Criminal Enforcement: detailing the way in which parties adhering to the agreement should address criminal enforcement of violations.

Who’s Talking?

The parties currently negotiating the ACTA (PDF) are a mix of developed and emerging economies including Australia, Canada, the European Union, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States.

Who’s Responding and Why?

Since 2007, the negotiations have generated public concern since all discussion has transpired behind closed doors. The United States Trade Representative responded to public apprehension by stating “that the ACTA documents [had to] be kept confidential to facilitate the frank exchange of views between negotiating governments to resolve differing national positions, and to obtain an agreement that is most favorable to U.S. economic interests and national security.”

In 2008, a discussion paper was leaked regarding a specific clause in the agreement, known as “the Pirate Bay killer,” that would allow government intervention and control of websites that were connected with non-commercial copyright infringement.  This leak further detailed the proposed legal enforcement framework, which would require Internet Service Providers (ISPs) to furnish any and all information about subscribers suspected of copyright infringement without a warrant.

As noted earlier, the ACTA’s 2008 draft suggested provisions for border searches and enforcement by participating parties. There has been significant disagreement within the negotiations, and the public “secretly” informed through leaked documents, about the possible ramifications of such stringent enforcement practices. Newspapers expressed the public’s concern of heightened security and more thorough searches at airports for illegally downloaded music or movies on personal electronic devices. Another primary concern was over the potential stricter policing of user-contributed material and the impact such enforcement would have on sites like Flickr, YouTube, or Blogger, which some argue would cease to exist because “hiring enough lawyers to ensure that the mountain of material uploaded every second isn’t infringing will exceed any hope of profitability.”

The leaked documents also suggested that the EU wanted to establish power (PDF) for judges “to issue pre-litigation seizure orders and injunctions against Internet intermediaries whose services are being used by a third party to infringe IP rights.” The “internet termination obligations were thought to remove any discretion that Congress gave internet service providers through the Digital Millennium Copyright Act (DMCA).” Public Knowledge, a collection of public interest and technology groups, responded to this provision by stating

Any discussion of ‘best practices’ regarding the use or testing of filtering technologies would also require changes to both the 1998 Digital Millennium Copyright Act (DMCA) and existing trademark law. . . . Section 512(m) of the DMCA expressly exempts intermediaries from obligations to monitor and filter its services. Filtering [would have] significant privacy, technical, due process, and cost concerns that would implicate many other U.S. laws.

The leaked draft also presented the idea of third party liability which would allow holding Internet Service Providers liable for copyright violations committed using their networks.

After the leaks, the European Commission published an ACTA fact sheet to address the concerns of a worried public. The EC statement (PDF) avowed that the

ACTA is not designed to negatively affect consumers: the EU legislation (2003 Customs Regulation) has a de minimis clause that exempts travelers from checks if the infringing goods are not part of large scale traffic. EU customs, frequently confronted with traffics of drugs, weapons or people, do neither have the time nor the legal basis to look for a couple of pirated songs on an i-Pod music player or laptop computer, and there is no intention to change this.

In 2008, the US brought drafted provisions geared to bring “safe harbor” principles into the negotiations out of fear that the ACTA would bear down hard on ISPs and end users. These provisions were designed to limit liability if ISPs put in place policies to deter unauthorized storage and transmission of IP infringing content. Section 512 of the DMCA has such provisions which state “a safe harbor will only be granted to an ISP who has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.”

Overall, support for the ACTA is a mixed bag. The motion picture industry, after years of taking the hit and suffering through declined box office sales due to global infringements, enthusiastically salutes (PDF) a framework that will “protect the jobs of the millions of men and women working in film and other creative industries.”  US Trade Representative Ron Kirk articulated further espousal for the ACTA noting this draft is “tremendous progress in the fight against counterfeiting and piracy.”

The most recent “neutered” draft released this month is a bit easier for staunch opponents to swallow. Public Knowledge, a DC advocacy group and previously faithful combatant of the ACTA recently stated the 2010 draft “is a qualified victory for those who want to protect the digital rights of consumers around the world. Some of the most egregious provisions from earlier drafts have been removed on topics ranging from digital protection measures to the liability of intermediaries like Internet Service Providers and search engines.” The Mexican Senate expressed anxiety regarding whether the ACTA signatories consensus will “promote cooperative efforts within the business community to effectively address copyright or related rights infringement while preserving legitimate competition and consistent with each Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.” The European Parliment has also expressed skepticism and unease about the opportunity of mischievous policing of Internet provisions and the possible barricades to further intellectual innovation.

There are no more negotiations scheduled for the ACTA and it is likely that the draft released this month will be accepted. The most recent draft of the ACTA can be accessed here.

Cite as: Hannah Minkevitch, The Anti-Counterfeiting Trade Agreement, Berkeley Tech. L.J. Bolt (November 4, 2010), http://btlj.org/?p=450.
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One Response to The Anti-Counterfeiting Trade Agreement

  1. maria andros says:

    Thanks for the post, keep posting stuff

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