Anti-Counterfeiting Trade Agreement
![]() | This article needs to be updated. |
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."[1] The scope of ACTA is broad, including counterfeit physical goods, as well as "internet distribution and information technology".[2] although its true scope cannot be definitely known, because major provisions have been deliberately kept secret from the public.
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.[3][4][5] 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.[6][7][5][8]
Negotiations were originally anticipated to conclude by the end of 2008,[9] however in November 2008 the European Commission stated that negotiations are likely to continue in 2009.[10] According to New Zealand ACTA would "establish a new international legal framework" and "the goal of ACTA is to set a new, higher benchmark for intellectual property rights enforcement that countries can join on a voluntary basis."[11] 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.[12]
Legal framework
ACTA would establish a new international legal framework that countries can join on a voluntary basis[13] 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.[5][14] 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.[15]
According to the European Commission the goal of ACTA is to establish an international framework that improves the enforcement of existing intellectual property right laws. The Commission states that ACTA is to create improved international standards for actions against large-scale infringements of intellectual property. To this end ACTA will have three primary components: "international cooperation"; "enforcement practices"; and "legal framework for enforcement of intellectual property rights". The "ultimate objective" of ACTA is that large emerging economies, "where intellectual property rights enforcement could be improved, such as China or Russia, will sign up to the global pact".[16] 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.[17]
Negotiations
The negotiations for the ACTA treaty are conducted in secrecy[6][7][5][8] and are not part of any international organisation.[18] 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.[5]
In November 2008 the European Commission stated that thus far there had been three rounds of negotiations: early June 2008 in Geneva, end of July 2008 in Washington, mid October 2008 in Tokyo. The Commission stated that the next round of negotiations will be in Paris, mid December 2008, and that negotiations are likely to continue in 2009.[19]
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".[20] In a ACTA fact sheet published in November 2008 the European Commission stated that "There is, at this stage, no agreed text."[21] 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.[22]
In reaction to the leaks the European Commission in November 2008 stated that:
"The negotiations are still ongoing. This means that there is no agreement yet, and that, at the time of writing this fact sheet, there is not even a draft text on which negotiating parties converge. A number of "texts", wrongly presented as draft ACTA agreements have been circulated on the web. At a preliminary stage of the discussions about the idea of a future ACTA, some of the negotiating parties have submitted concept papers, to present their initial views of the project to other partners. Some of these concept papers have been circulated on the net or commented in the press and presented as "draft ACTA texts or negotiating guidelines", which they are not."[23]
Details published in February 2009 indicate that ACTA has six main chapters[24]. Most of discussion to date is focused on the "Enforcement of Intellectual Property Rights" chapter, which has four sub chapters:
- (1) Initial Provisions and Definitions;
- (2) Enforcement of IPR;
- civil enforcement,
- border measures
- criminal enforcement
- Rights Management Technology/the Internet.
- (3) International Cooperation;
- (4) Enforcement Practices;
- (5) Institutional Arrangements;
- (6) Final Provisions.
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.[25]
Border searches
Potential border searches are covered by the "Border Measures" proposal of ACTA. As of February 2009, reports show significant disagreement between countries on this topic: "Some countries are seeking de minimum rules, the removal of certain clauses, and a specific provision to put to rest fears of iPod searching customs officials by excluding personal baggage that contains goods of a non-commercial nature. The U.S. is pushing for broad provisions that cover import, export, and in-transit shipments. "[24].
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.[5][8]
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."[26][27] Senator Russell Feingold called the policies "truly alarming" and proposed to introduce legislation to require reasonable suspicion of illegality and to prohibit racial profiling.[26] The Ninth Circuit Court of Appeals has previously upheld the constitutionality of laptop searches without reasonable suspicion at border crossings.[26]
In a ACTA fact sheet updated in November 2008 the European Commission stated that:
"ACTA is not designed to negatively affect consumers: the EU legislation (2003 Customs Regulation) has a de minimis clause that exempts travellers 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."[28]
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. [29]
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."[30]
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."[30]
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[31]. The document will be discussed and probably amended within the INTA Comittee of the European Parliament. Eva Lichtenberger prepared a Draft Opinion[32] that heavily criticises this paper within the JURI-committee. On 18 Dezember 2008 the European Parliament adopted the resolution from the Greens with 309 against 232 Votes.
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.[33]. On 25 September 2008 the council adopted a blatant pro-ACTA resolution[34].
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."[35]
Criticism
Secrecy of negotiations
The Electronic Frontier Foundation opposes ACTA, calling for more public spotlight on the proposed treaty.[36] 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.[6][7][5][8]
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".[37]
In November 2008 the European Commission responded to these alegations as follows:
"It is alleged that the negotiations are undertaken under a veil of secrecy. This is not correct. For reasons of efficiency, it is only natural that intergovernmental negotiations dealing with issues that have an economic impact, do not take place in public and that negotiators are bound by a certain level of discretion. However, there has never been any intention to hide the fact that negotiations took place, or to conceal the ultimate objectives of the negotiations, the positions taken in European Commission Trade 5/6 the negotiations or even details on when and where these negotiations are taking place. The EU and other partners (US, Japan, Canada, etc.) announced their intention to start negotiations of ACTA on 23 October 2007, in well publicised press releases. Since then we have talked about ACTA on dozens of occasions, including at the European Parliament (INTA committee meetings), and in numerous well attended seminars. Commission organised a stakeholders' consultation meeting on 23 June in Brussels, open to all – industry and citizens and attended by more than 100 participants. US, Australia, Canada, New Zealand and other ACTA partners did the same. Civil society input will continue to be taken into consideration during the negotiations and further stakeholder meetings will be organised."[38]
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.[39]
Privacy
The Free Software Foundation argues that ACTA will create a culture of surveillance and suspicion.[20] 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".[40]
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.[41] The same study also found that 95% of individuals falling under this category have copied music in some way.[41] Thus, some critics argue that ACTA directly incriminates the ordinary consumer activity.[42][43][44]
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."[20] 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.[20]
Requests for disclosure
In September 2008 a number of interests groups urged parties to the ACTA negotiations to disclose the language of the evolving agreement. In an open letter the groups argued that: "Because the text of the treaty and relevant discussion documents remain secret, the public has no way of assessing whether and to what extent these and related concerns are merited." The interest groups included: the Consumers Union, the Electronic Frontier Foundation, Essential Action, IP Justice, Knowledge Ecology International, Public Knowledge, Global Trade Watch, the US Public Interest Research Group, IP Left (Korea), the Australian Digital Alliance, the Canadian Library Association, the Consumers Union of Japan, the National Consumer Council (UK) and the Doctors without Borders' Campaign for Essential Medicines.[45]
In November 2008, FFII requested secret Anti-Counterfeiting Trade Agreement (ACTA) documents from the EU Council, specifically naming 12 documents to be published.[46] 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" [47]. 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
References
- ^ http://www.med.govt.nz/templates/ContentTopicSummary____34357.aspx
- ^ "What is ACTA?". Electronic Frontier Foundation (EFF). Retrieved 1 december 2008.
{{cite web}}
: Check date values in:|accessdate=
(help) - ^ "What is ACTA?". Electronic Frontier Foundation (EFF). Retrieved 1 december 2008.
{{cite web}}
: Check date values in:|accessdate=
(help) - ^ Geiger, Andrea (2008-04-30). "A View From Europe: The high price of counterfeiting, and getting real about enforcement". The Hill. Retrieved 2008-05-27.
- ^ a b c d e f g Pilieci, Vito (2008-05-26). "Copyright deal could toughen rules governing info on iPods, computers". Vancouver Sun. Retrieved 2008-05-27.
- ^ a b c "Proposed US ACTA multi-lateral intellectual property trade agreement (2007)". Wikileaks. 22 May 2008.
- ^ a b c Jason Mick (23 May 2008). "Wikileaks Airs U.S. Plans to Kill Pirate Bay, Monitor ISPs With Multinational ACTA Proposal". DailyTech.
- ^ a b c d Weeks, Carly (2008-05-26). "Anti-piracy strategy will help government to spy, critic says". The Globe and Mail. Retrieved 2008-05-27.
- ^ http://www.med.govt.nz/templates/ContentTopicSummary____34357.aspx
- ^ "The Anti-Counterfeiting Trade Agreement (ACTA) Fact Sheet (Updated November 2008)" (PDF). European Commission. Retrieved 8 December 2008.
- ^ http://www.med.govt.nz/templates/ContentTopicSummary____34357.aspx
- ^ "SECURE Draft (Feb. 2008)" (PDF). World Customs Organization (WCO). February 2008.
- ^ http://www.med.govt.nz/templates/ContentTopicSummary____34357.aspx
- ^ "Fact Sheet: Anti-Counterfeiting Trade Agreement". European Commission. 2007-10-23. Retrieved 2008-05-27.
- ^ "What is ACTA?". Electronic Frontier Foundation (EFF). Retrieved 1 december 2008.
{{cite web}}
: Check date values in:|accessdate=
(help) - ^ "The Anti-Counterfeiting Trade Agreement (ACTA) Fact Sheet (Updated November 2008)" (PDF). European Commission. Retrieved 8 December 2008.
- ^ http://www.med.govt.nz/templates/MultipageDocumentTOC____34358.aspx
- ^ http://www.med.govt.nz/templates/ContentTopicSummary____34357.aspx
- ^ "The Anti-Counterfeiting Trade Agreement (ACTA) Fact Sheet (Updated November 2008)" (PDF). European Commission. Retrieved 8 December 2008.
- ^ a b c d Speak out against ACTA - Free Software Foundation
- ^ "The Anti-Counterfeiting Trade Agreement (ACTA) Fact Sheet (Updated November 2008)" (PDF). European Commission. Retrieved 8 December 2008.
- ^ "What is ACTA?". Electronic Frontier Foundation (EFF). Retrieved 1 december 2008.
{{cite web}}
: Check date values in:|accessdate=
(help) - ^ "The Anti-Counterfeiting Trade Agreement (ACTA) Fact Sheet (Updated November 2008)" (PDF). European Commission. Retrieved 8 December 2008.
- ^ a b http://www.michaelgeist.ca/content/view/3660/125/ Putting Together the ACTA Puzzle: Privacy, P2P Major Targets
- ^ Ingram, Matthew (2008-05-26). "Do we need copyright cops?". Ingram 2.0. Globe and Mail. Retrieved 2008-05-27.
- ^ a b c Nakashima, Ellen (2008-08-01). "Travelers' Laptops May Be Detained At Border". Washington Post. Retrieved 2008-08-01.
- ^ "Policy Regarding Border Search of Information" (PDF). U.S. Customs and Border Protection. 2008-07-16. Retrieved 2008-08-01.
- ^ "The Anti-Counterfeiting Trade Agreement (ACTA) Fact Sheet (Updated November 2008)" (PDF). European Commission. Retrieved 8 December 2008.
- ^ Anderson, Nate (2008-06-30). "RIAA's ACTA wishlist includes gutted DMCA, mandatory filters". Ars Technica. Retrieved 2008-07-02.
- ^ a b Fact Sheet: Anti-Counterfeiting Trade Agreement - European Commission (23 October 2007)
- ^ "Draft Report on the impact of counterfeiting on international trade".
- ^ JURI Draft Opinion: Impact of Counterfeiting on International Trade
- ^ Presidency of the Council (26 August 2008). "Draft Council Resolution on a comprehensive European anti-counterfeiting plan" (PDF). Council.
- ^ Presidency of the Council (25 September 2008). "Council Resolution on a comprehensive European anti-counterfeiting plan" (pdf). Council.
- ^ http://www.med.govt.nz/templates/ContentTopicSummary____34357.aspx
- ^ "Sunlight for ACTA". EFF. Retrieved 2008-07-05.
- ^ http://www.faircopyrightforcanada.ca/government-should-lift-veil-on-acta-secrecy/
- ^ "The Anti-Counterfeiting Trade Agreement (ACTA) Fact Sheet (Updated November 2008)" (PDF). European Commission. Retrieved 8 December 2008.
- ^ Anderson, Nate (2008-06-02). "The real ACTA threat (it's not iPod-scanning border guards)". Ars Technica. Retrieved 2008-06-14.
- ^ http://www.kestudies.org/ojs/index.php/kes/article/view/34/59
- ^ a b "Average teenager's iPod has 800 illegal music tracks". Times. Retrieved 2008-07-05.
- ^ "IP Justice White Paper on the Proposed Anti-Counterfeiting Trade Agreement (ACTA)". IPJustice.org. Retrieved 2008-07-05.
- ^ "Students (unaware/don't care) about music legalities". ZDNet. Retrieved 2008-07-05.
- ^ "Piracy as a social phenomenon - It's not about the $". ZDNet. Retrieved 2008-07-05.
- ^ "Anti-Counterfeiting Trade Agreement: Fact or Fiction?". Wired.com. 15 September 2008.
- ^ FFII Press Release from November 3 2008 FFII opposes stealth legislation, demands ACTA documents
- ^ FFII Press Release from November 10 2008 EU Council refuses to release secret ACTA documents