Anti-Counterfeiting Trade Agreement

The Anti-Counterfeiting Trade Agreement (ACTA) is a proposed plurilateral trade agreement in response "to the increase in global trade of counterfeit goods and pirated copyright protected works." The scope of ACTA is broad, including counterfeit physical goods, as well as "internet distribution and information technology".

In October 2007 the United States, the European Community, Switzerland and Japan announced that they would negotiate ACTA. Furthermore the following countries have joined the negotiations: Australia, the Republic of Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates and Canada. The ACTA negotiations have been conducted in secrecy until on 22 May 2008 a discussion paper about the proposed agreement was uploaded to Wikileaks, and newspaper reports about the secret negotiations quickly followed.

ACTA would "establish a new international legal framework" and participants seek to complete the negotiation by the end of 2008. New Zealand states that "The goal of ACTA is to set a new, higher benchmark for intellectual property rights enforcement that countries can join on a voluntary basis." ACTA is part of a broader "forum shifting" strategy employed by the trade representatives of the US, EC, Japan, and other supporters of rigid intellectual property enforcement: similar terms and provisions currently appear in the World Customs Organization draft SECURE treaty. If adopted the treaty would establish an international coalition against copyright infringement, imposing strong, top-down enforcement of copyright laws in developed nations. The proposed agreement would allow border officials to search laptops, MP3 players, and cellular phones for copyright-infringing content. It would also impose new cooperation requirements upon Internet service providers (ISPs), including perfunctory disclosure of customer information, and restrict the use of online privacy tools. The proposal specifies a plan to encourage developing nations to accept the legal regime, as well.

Legal framework

ACTA would establish a new international legal framework that countries can join on a voluntary basis and would create its own governing body outside existing international institutions such as the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO) or the United Nations. Citing a fact sheet published by the Office of the United States Trade Representative (USTR) and the USTR's 2008 Special 301 report the Electronic Frontier Foundation (EFF) states that the goal of ACTA is to create a new standard of intellectual property enforcement beyond the existing standards in the TRIPs Agreement and to increase international cooperation, including the sharing of information between signatory countries' law enforcement agencies. According to New Zealand ACTA aims to facilitate a "strong and modern legal framework so that law enforcement agencies, the judiciary, and private citizens have the most up-to-date tools necessary to effectively bring counterfeiters and pirates to justice." Areas for possible ACTA provisions include: criminal enforcement, border measures, civil enforcement, optical disc piracy, and internet distribution and information technology.

Negotiations

The negotiations for the ACTA treaty are conducted in secrecy and are not part of any international organisation. The European Commission, the Office of the United States Trade Representative, the Australian Department of Foreign Affairs and Trade, and other government agencies have acknowledged participating in ACTA negotiations, but they have refused to release drafts of the treaty or to discuss specific terms under discussion in the negotiations. Public interest advocates in Canada filed an access to information request but received only a document stating the title of the agreement, with everything else blacked out.

Provisions

Although the treaty's title suggests that the agreement only covers counterfeit physical goods (such as medicines), the proposed treaty will have a broader scope, including "Internet distribution and information technology". A leaked document entitled Discussion Paper on a Possible Anti-counterfeiting Trade Agreement suggests that the following provisions will be included in ACTA: new legal regimes to "encourage ISPs to cooperate with right holders in the removal of infringing materials", criminal measures and increased border search powers.

ISP cooperation

The leaked document includes a provision to force Internet service providers to provide information about suspected copyright infringers without a warrant, making it easier for the record industry to sue music file sharers and for officials to shut down non-commercial BitTorrent websites such as The Pirate Bay.

Border searches

Newspaper reports indicate that the proposed agreement would empower security officials at airports and other international borders to conduct random ex officio searches of laptops, MP3 players, and cellular phones for illegally downloaded or "ripped" music and movies. Travellers with infringing content would be subject to a fine and may have their devices confiscated or destroyed.

Some countries already conduct border searches of electronic devices without probable cause. In July 2008, the United States Department of Homeland Security disclosed that its border search policies allow U.S. Customs and Border Protection agents to conduct random searches of electronic devices for "information concerning terrorism, narcotics smuggling, and other national security matters; alien admissibility; contraband including child pornography, monetary instruments, and information in violation of copyright or trademark laws; and evidence of embargo violations or other import or export control laws." Senator Russell Feingold called the policies "truly alarming" and proposed to introduce legislation to require reasonable suspicion of illegality and to prohibit racial profiling. The Ninth Circuit Court of Appeals has previously upheld the constitutionality of laptop searches without reasonable suspicion at border crossings.

Support

Recording Industry Association of America

The Recording Industry Association of America (RIAA) supports the agreement, and has given input and suggestions to the creation of ACTA.

European Union

European Commission

The European Commission identifies ACTA as an attempt to enforce intellectual property rights and states that countries involved in the negotiations see consider intellectual property rights as "a key instrument for their development and innovation policies". The European Commission and argues that:

"The proliferation of intellectual property rights (IPR) infringements poses an ever-increasing threat to the sustainable development of the world economy. It is a problem with serious economic and social consequences. Today, we face a number of new challenges: the increase of dangerous counterfeit goods (pharmaceuticals, food and drink, cosmetics or toys, car parts); the speed and ease of digital reproduction; the growing importance of the Internet as a means of distribution; and the sophistication and resources of international counterfeiters. All these factors have made the problem more pervasive and harder to tackle."

Regarding the question why this agreement is not pursued through the G8, WTO, WIPO or other formal existing structures the European Commission explains that a free-standing agreement provides the most flexibility "to pursue this project among interested countries", while stating that "the membership and priorities of those organizations (G8, WTO, and WIPO) simply are not the most conducive to this kind of path breaking project."

European Parliament

With a draft Report from 26 August 2008 the European Commission tries to get a Mandate from the European Parliament for the negotiation of ACTA. The document will be discussed and probably amended within the INTA Comittee of the European Parliament. Eva Lichtenberger prepared a Draft Opinion that heavily criticises this paper within the JURI-committee. The resolution is scheduled for adoption in the committee on 6 November 2008 and on 16 December 2008 for the plenary. There are 107 Amendments to the original Draft

Council of the European Union

Shortly after, the Council of the European Union also started to work on a Draft for a Resolution dealing with ACTA.. On 25 September 2008 the council adopted a blatant pro-ACTA resolution.

G8 Leaders' Communiqué on the World Economy

Published in July 2008 paragraph 17 of the G8 Leaders' Communiqué on the World Economy (G8 Hokkaido Toyako Summit) states under the heading "Protection of Intellectual Property Rights (IPR)" that:

"Effective promotion and protection of IPR are critical to the development of creative products, technologies and economies. We will advance existing anti-counterfeiting and piracy initiatives through, inter alia, promoting information exchange systems amongst our authorities, as well as developing non-binding Standards to be Employed by Customs for Uniform Rights Enforcement (SECURE) at the World Customs Organization. We encourage the acceleration of negotiations to establish a new international legal framework, the Anti-Counterfeiting Trade Agreement (ACTA), and seek to complete the negotiation by the end of this year. We will promote practical cooperation between our countries to develop tools to combat new techniques in counterfeiting and piracy and spread best practices. We reaffirm our commitment on government use of software in full compliance with the relevant international agreements and call on other countries to follow our commitment."

Criticism

Secrecy of negotiations

The Electronic Frontier Foundation opposes ACTA, calling for more public spotlight on the proposed treaty. Since May 2008 discussion papers and other documents relating to the negotiation of ACTA have been uploaded to Wikileaks, and newspaper reports about the secret negotiations quickly followed. In June 2008 Michael Geist from Copyright News called argued that "Government Should Lift Veil on ACTA Secrecy" noting before documents leaked on the internet ACTA was shrouded in secrecy. Coverage of the documents by the Toronto Star "sparked widespread opposition as Canadians worry about the prospect of a trade deal that could lead to invasive searches of personal computers and increased surveillance of online activities." Geist argues that public disclosure of the draft ACTA treaty "might put an end to fears about iPod searching border guards" and that it "could focus attention on other key concerns including greater Internet service provider filtering of content, heightened liability for websites that link to allegedly infringing content, and diminished privacy for Internet users." Geist also argues that greater transparency would lead to a more inclusive process, highlighting that the ACTA negotiations have excluded both civil society groups as well as developing countries. Geist reports that "reports suggest that trade negotiators have been required to sign non-disclosure agreements for fear of word of the treaty's provisions leaking to the public." He argues that there is a need for "cooperation from all stakeholders to battle counterfeiting concerns" and that "an effective strategy requires broader participation and regular mechanisms for feedback".

Legal scope

It has been argued that the main thrust of ACTA is to provide safe harbor for service providers so that they may not hesitate to provide information about infringers; this may be used, for instance, to quickly identify and stop infringers once their identities are confirmed by their providers. Similarly, it provides for criminalization of copyright infringement, granting law enforcement the powers to perform criminal investigation, arrests and pursue criminal citations or prosecution of suspects who may have infringed on copyright. It also allows criminal investigations and invasive searches to be performed against individuals for whom there is no probable cause, and in that regard weakens the presumption of innocence and allows what would in the past have been considered unlawful searches. More pressingly, being an international treaty, it allows for these provisions—usually administered through public legislation and subject to judiciary oversight—to be pushed through via closed negotiations among members of the executive bodies of the signatories, and once it is ratified, using trade incentives and the like to persuade other nations to adopt its terms without much scope for negotiation.

Privacy

The Free Software Foundation argues that ACTA will create a culture of surveillance and suspicion. Aaron Shaw argues that "ACTA would create unduly harsh legal standards that do not reflect contemporary principles of democratic government, free market exchange, or civil liberties. Even though the precise terms of ACTA remain undecided, the negotiants' preliminary documents reveal many troubling aspects of the proposed agreement." such as removing "legal safeguards that protect Internet Service Providers from liability for the actions of their subscribers" in effect giving ISPs no option but to comply with privacy invasions. Shaw further says that "[ACTA] would also facilitate privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process".

Practicality

A British study found that iPods owned by persons 14-24 today contain an average of more than 840 tracks downloaded on file-sharing networks, nearly fifty percent of all music possessed by this segment. The same study also found that 95% of individuals falling under this category have copied music in some way. Thus, some critics argue that ACTA directly incriminates the ordinary consumer activity.

Threat to free software

The Free Software Foundation has published "Speak out against ACTA", stating that the ACTA threatens free software by creating a culture "in which the freedom that is required to produce free software is seen as dangerous and threatening rather than creative, innovative, and exciting." Specifically the FSF argues that ACTA will makes it more difficult and expensive to distribute free software via file sharing and P2P technologies like BitTorrent, which are currently used to distributing large amounts of free software. The FSF also argues that ACTA will make it harder for users of free operating systems to play media because DRM protected media cannot be played with free software.

Requests for disclosure

In November 2008, FFII requested secret Anti-Counterfeiting Trade Agreement (ACTA) documents from the EU Council, specifically naming 12 documents to be published. The request was denied by the EU council, stating that "disclosure of this information could impede the proper conduct of the negotiations, would weaken the position of the European Union in these negotiations and might affect relations with the third parties concerned" . FFII stated that although the case could be won in the European court of justice, the legal process could take many years (citing an earlier case on transparency of EU legislation that took 6 years). Consequently, FFII suggests going via parlaments of Europe to force Council to publish the texts.

See also

• Agreement on Trade-Related Aspects of Intellectual Property Rights
• anti-copyright
• copyright
• digital rights
• Directorate-General for Information Society and Media (European Commission)
• electronic civil disobedience
• European Round Table of Industrialists
• information freedom
• World Summit on the Information Society
• World Intellectual Property Organization
• World Intellectual Wealth Organisation

External links

• Discussion paper from the Australian Department of Foreign Affairs and Trade from the Australian Government Website
• Proposed US ACTA multi-lateral intellectual property trade agreement (2007) posted on Wikileaks
• ACTA document posted on Wikileaks
• ACTA information from IP Justice
• Sunlight for ACTA Campaign at the Electronic Frontier Foundation
• ACTA articles by Michael Geist
• An ACTA Call to Arms: No more secret government posted by William Patry, formerly copyright counsel to the U.S. House of Representatives.
• The Problem With ACTA - Knowledge Ecology Studies comment by Aaron Shaw.
• FFII.org analysis of ACTA
• Analysis of ACTA by Mark Harris