Anti-Counterfeiting Trade Agreement

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ACTA
Anti-Counterfeiting Trade Agreement
  Signatories

  Signatories also covered by signature of the European Union
  Non-signatories covered by signature of the European Union

  Other countries eligible for signing the convention
TypePlurilateral agreement
Drafted15 April 2011 (final)
Signed1 October 2011
LocationTokyo
Effectivenot in force
Conditionratification by six states
SignatoriesUnited States, the European Union and 22 of its Member States, Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea
Partiesnegotiating parties: Australia, Canada, the European Union, Japan, Mexico, Morocco, New Zealand, Korea, Singapore, Switzerland and the United States
Ratifiersnone
DepositaryGovernment of Japan
LanguagesEnglish, French and Spanish
Full text
Anti-Counterfeiting Trade Agreement at Wikisource

The Anti-Counterfeiting Trade Agreement (ACTA) is a plurilateral agreement for the purpose of establishing international standards for intellectual property rights enforcement. The agreement aims to establish an international legal framework for targeting counterfeit goods, generic medicines and copyright infringement on the Internet, and would create a new governing body outside existing forums, such as the World Trade Organization, the World Intellectual Property Organization, or the United Nations.[1][2][3]

The agreement was signed on 1 October 2011 by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea and the United States. In January 2012, the European Union and 22 of its member states signed as well, bringing the total number of signatories to 31. After ratification by 6 states, the convention will come into force.

Supporters have described the agreement as a response to "the increase in global trade of counterfeit goods and pirated copyright protected works", while opponents have lambasted it for its potentially adverse effects on fundamental civil and digital rights, including freedom of expression and communication privacy.[4][5][6][7] Others, such as the Electronic Frontier Foundation, have derided the exclusion of civil society groups, developing countries and the general public from the agreement's negotiation process and have described it as policy laundering.[8][9] The signature of the EU and many of its member states resulted in the resignation in protest of the European Parliament's appointed rapporteur, as well as widespread protests across Poland.[10][11][12]

Background

ACTA is a proposed plurilateral agreement for the purpose of establishing international standards on intellectual property rights enforcement.[1] It would establish an international legal framework for countries to join voluntarily,[5] and would create a governing body outside international institutions such as the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO) or the United Nations.[1][3] Negotiating countries have described it as a response "to the increase in global trade of counterfeit goods and pirated copyright protected works."[5] The scope of ACTA includes counterfeit goods, generic medicines and copyright infringement on the Internet.[2] Groups such as the Electronic Frontier Foundation (EFF) oppose ACTA,[8] stating that civil society groups and developing countries were excluded from discussion during ACTA's development in an example of policy laundering.[6]

Opponents have argued that the treaty will restrict fundamental civil and digital rights, including freedom of expression and communication privacy.[7] "The bulk of the WTO's 153 members" have raised concerns that the treaty could distort trade and goes beyond the existing Agreement on Trade-Related Aspects of Intellectual Property Rights.[13] Opponents also criticize ACTA's removal of "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.[14] According to an analysis by the Free Software Foundation, ACTA would require that existing ISPs no longer host free software that can access copyrighted media, and DRM-protected media would not be legally playable with free or open source software.[15]

Negotiations

Negotiations for the ACTA treaty are not part of any international body.[5] ACTA was first developed by Japan and the United States in 2006. Canada, the European Union and Switzerland joined the preliminary talks throughout 2006 and 2007. Official negotiations began in June 2008, with Australia, Mexico, Morocco, New Zealand, the Republic of Korea and Singapore joining the talks. Apart from the participating governments, an advisory committee of large US-based multinational corporations was consulted on the content of the draft treaty,[16] including the Pharmaceutical Research and Manufacturers of America[17] and the International Intellectual Property Alliance[18] (which includes the Business Software Alliance, Motion Picture Association of America, and Recording Industry Association of America).[19] The treaty calls for the creation of an "ACTA committee" to make amendments, for which public or judicial review are not required. Industry representatives may have "consultatory input" to amendments.[20] A 2009 Freedom of Information request showed that the following companies also received copies of the draft under a nondisclosure agreement: Google, eBay, Intel, Dell, News Corporation, Sony Pictures, Time Warner, and Verizon.[21]

ACTA first came to public attention in May 2008 after a discussion paper was uploaded to Wikileaks.[22] After more leaks in 2009 and 2010 and denied requests for disclosure by groups such as Doctors without Borders, IP Justice, the Canadian Library Association, and the Consumers Union of Japan,[23][5][24] the negotiating parties published an official version of the then current draft on 20 April 2010.[25] In June 2010, a conference with "over 90 academics, practitioners and public interest organizations from six continents"[26] concluded "that the terms of the publicly released draft of ACTA threaten numerous public interests, including every concern specifically disclaimed by negotiators." A group of 75+ law professors signed a letter to President Obama demanding that ACTA be halted and changed.[27]

The final text was released on 15 November 2010,[28] with English, French, and Spanish published on 15 April 2011.[29]

Official rounds of negotiations

The first official round of negotiations took place in Geneva during 3–4 June 2008; at that time, the following countries had joined the negotiations: Australia,[30] the European Union, Jordan, Mexico, Morocco, New Zealand, Republic of Korea, Singapore and United Arab Emirates.[31] The second round of negotiations took place in Washington, DC, on 29–31 July 2008.[32] The third round of negotiations was held in Tokyo on 8–9 October 2008.[33] The following month, the European Commission stated that "There is, at this stage, no agreed text."[1]

The fourth round of negotiations took place in Paris from 15–18 December 2008.[34] The fifth round was hosted by the Kingdom of Morocco in Rabat on 16–17 July 2009. Participants in the negotiations included Australia, Canada, the European Union (represented by the European Commission, the EU Presidency (Sweden) and EU Member States), Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the USA.[35] The discussions at the meeting focused on international cooperation, enforcement practices and institutional issues. Transparency was also discussed, including providing information to stakeholders and the interested public. Participants agreed to release draft agendas before all subsequent negotiation rounds.[35] The sixth round of the ACTA negotiations was hosted by the Republic of Korea in Seoul on 4–6 November 2009. Participants in these negotiations included Australia, Canada, the European Union, Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the United States of America. Discussions focused on enforcement in the digital environment and criminal enforcement.[36] The seventh round of negotiations took place on 26–29 January 2010 in Guadalajara, Mexico. Participants were the same as the 6th round.[37]

The eighth round of negotiations took place from 12–16 April 2010 in Wellington, New Zealand. Topics on the agenda were border measures, enforcement procedures in the digital environment, criminal enforcement, civil enforcement, and transparency.[38] Confidential documents were leaked the previous March which indicated the agenda and venue, which the organisers had attempted to keep secret. Day one and two of the negotiations covered border measures and “enforcement procedures in the digital environment”, including infringement of copyright on the Internet. Criminal measures and civil enforcement were discussed on day three and four. On the last day of negotiation the issue of greater transparency was discussed. Before the start of the negotiation round New Zealand reportedly pushed for greater transparency, the European Union reportedly favoured greater transparency and the US strongly opposed the publication of the draft ACTA agreement.[39] To coincide with the negotiation round InternetNZ, a non-profit organisation, held a PublicACTA event on the 10 April 2010 to discuss the known and likely content of the ACTA draft agreement and to develop a statement on ACTA.[40] At the event, the Wellington Declaration was developed by over 100 participants, and was published the following day along with a petition for its endorsement. By 13 April, it had received 6,645 signatures. The Wellington Declaration and the petition was given to the Government of New Zealand, which delivered the Declaration to the other negotiating countries.[41] On 16 April the negotiating countries issued a joint statement that they had reached unanimous agreement to make the consolidated text, as established at that round of negotiation, available to the public by 21 April. It was also decided to not release individual negotiating positions of countries.[42] The official current draft text was published on 20 April 2010.[38]

The ninth round of negotiations was in Lucerne, Switzerland from 28 June to 1 July 2010.[43]

Leaks

The negotiations for the ACTA treaty were conducted behind closed doors until a series of leaked documents relating to the negotiations emerged.

2008

On 22 May 2008, a discussion paper about the proposed agreement was uploaded to Wikileaks.[22] According to the discussion paper a clause in the draft agreement would allow governments to shut down websites associated with non-commercial copyright infringement, which was termed "the Pirate Bay killer" in the media.[44] According to the leaked discussion paper the draft agreement would also set up an international agency that could force Internet Service Providers (ISPs) to provide information about subscribers suspected of copyright infringers without a warrant.[44] In reaction to the leaks, the European Commission issued a statement in November 2008, stating:

"The negotiations are still ongoing...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."[1]

Another leak took place in June 2008. In a confidential draft Canada proposed the creation of an international organization for what was proposed as the ACTA Oversight Council. Functions were recorded to be:

  • "supervising ACTA implementation (and also considering amendments, interpretations, and modifications):
  • "establishing and delegating responsibilities to ad hoc working groups"
  • "assisting with resolving any disputes that may arise regarding the interpretation of application of ACTA"
  • "ensuring that ACTA avoids duplication of other international efforts regarding IP enforcement"
  • "seeking input from non-governmental persons or groups, particularly with respect to best practices in the field of intellectual property enforcement"
  • endorsing best practice guidelines for implementing ACTA
  • "supporting the efforts of international organizations active in the field of intellectual property enforcement"
  • "assisting non-Party governments with developing assessments of the benefits of accession to ACTA; and"
  • "adopting its own rules of procedure."[45]

2009

Leaked details published in February 2009 showed the 6 chapter-division also present in the final text. Most discussion was focused on the "Enforcement of Intellectual Property Rights" (IPR) chapter 2, which had the four sections also present (but slightly differently named) in the final version: Civil Enforcement, Border Measures, Criminal Enforcement and Intellectual Property Rights Enforcement in the Digital Environment.[2]

2010

On 23 March 2010, the entire "January 18th 2010 consolidated text" of sections 2.1 and 2.4 (Civil Enforcement, and Special Measures Related To Technological Enforcement Means And The Internet) along with the demands of each negotiator was leaked to the public.[46][47] This was immediately called the "biggest ever" ACTA leak.[48]

The full consolidated text of the proposed ACTA, dated 1 July 2010,[49][50] comes apparently from the civil liberties committee (LIBE) of the European Parliament. The leak provided the full text from the Luzern round of negotiations, including the name of the negotiating parties along with their positions.

The revised and presumably final text, dated 15 November 2010, was leaked on 16 November 2010 by several websites.[51][52][53]

Early drafts

At the 8th round of negotiations, which took place 12–16 April 2010 in Wellington, New Zealand, it was agreed to release the first official draft text, which was published on 20 April 2010. As a draft the text it was subject to negotiation, and the draft text includes alternative wording and suggestions in brackets. The draft text does not indicate the position of individual countries.[38] Chapter two of the draft agreement was the largest single chapter. The draft had six chapters in total.[25]

  • Chapter 2 of the draft treaty, "Legal Framework For Enforcement of Intellectual Property Rights," has four sections, making provisions on "Civil Enforcement", "Border Measures", "Criminal Enforcement" and "Intellectual Property Rights Enforcement in the Digital Environment".[20] An official Summary of Key Elements Under Discussion from November 2009 summarises the key points of discussions between negotiating countries for each of the four sections.[20]
  • Chapter 2, Section 1, entitled "Civil Enforcement", provides for actions that courts and other "competent authority" can take after infringement of intellectual property rights has been established. Points of discussion include "the authority of the judicial authorities to order injunctions which require that a party desist from an infringement" and "the definition of adequate damages and the question of how to determine the amount of damages, particularly when a right holder encounters difficulties in calculating the exact amount of damage it has incurred."
  • Chapter 2, Section 2 on "Border Measures" covers "actions that customs and other competent authorities would be authorized to take to prevent goods that infringe intellectual property rights from crossing borders." Discussions are focused on "procedures that must accompany these actions", including "a de minimis exception that could permit travellers to bring goods for personal use" and arrangements for "right holders to request customs authorities to suspend the entry of goods suspected to infringe intellectual property rights at the border".[20]
  • Chapter 2, Section 3, entitled "Criminal Enforcement", is focused on criminal procedures and penalties. Negotiations seek to "clarify the scale of infringement necessary to qualify for criminal sanctions in cases of trademark counterfeiting and copyright and related rights piracy" and the possibility of "criminal procedures and penalties in cases of camcording motion pictures or other audiovisual works". Under discussion are also the scope of criminal penalties and whether "authorities should be empowered to take action against infringers on their own initiative... without complaint by right holders".
  • Chapter 2, Section 4 on "Intellectual Property Rights Enforcement in the Digital Environment" is meant to address "some of the special challenges that new technologies pose for enforcement of intellectual property rights." Amongst others the negotiations for this section include discussion about the "availability of remedies" in relation to "infringing material online, including limitations on the application of those remedies to online service providers" and "the circumvention of technological protection measures".[20]

Signatures and ratifications

A signing ceremony was held on 1 October 2011 in Tokyo, with the United States, Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea signing the treaty. The European Union, Mexico, and Switzerland attended but did not sign, professing support and saying they will do so in the future.[54][55] Article 39 of ACTA states countries can sign the treaty until 31 March 2013. The European Parliament reportedly has the final decision over whether the treaty is dismissed or enacted.[56] On 26 January 2012, the European Union and 22 Member States signed the treaty; the remaining members (Cyprus, Estonia, Germany, Netherlands and Slovakia) are expected to sign it on the completion of their respective domestic procedures.[57] However, ratification is pending parliamentary approval of all states and final enactment into law is on hold pending a debate in the European Parliament in June 2012.[58]

When Poland announced its intentions to sign the treaty on 18 January 2012,[59] a number of Polish government websites, including those of the President and Polish Parliament, were shut down by denial of service attacks that started January 21, akin to protests against SOPA and PIPA that had happened two days previously.[60][61] Notwithstanding the ongoing protests, the Polish ambassador to Japan signed the treaty, as ordered by the Polish authorities,Cite error: The <ref> tag has too many names (see the help page). though whether it is going to be ratified by the Parliament and the President remains to be seen.

Kader Arif, European rapporteur for ACTA, subsequently resigned from his position on 26 January 2012 saying "I want to send a strong signal and alert the public opinion about this unacceptable situation. I will not take part in this masquerade."[10][11]

Legal framework

ACTA establishes 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.[1][3] With regards to the reason for not pursuing ACTA 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."[1] The draft treaty's title suggests that the agreement only covers infringement of patents, that is counterfeit physical goods such as medicines, however the draft treaty also covers infringement of copyright in the context of "Internet distribution and information technology".[2]

Articles 5 and 6 of the treaty provide creation of an "ACTA committee" which may make subsequent amendments to the agreement, subject to the approval of the parties. Public review or judicial review will not be needed to create amendments. Industry representatives may have consultatory input to amendments.[62][63]

An official Summary of Key Elements Under Discussion published November 2009 states that "ACTA aims to build on existing international rules in the area of intellectual property, in particular on the TRIPS Agreement, and is intended to address a number of enforcement issues where participants have identified that an international legal framework does not exist or needs to be strengthened."[20] 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, Russia or Brazil, will sign up to the global pact".[1] The 2008 Special 301 Report published by the Office of the United States Trade Representative (USTR) states that "ACTA will bring together countries that recognize the critical importance of strong IPR (Intellectual Property Rights) 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. ACTA will build upon the Administration’s prior bilateral and regional cooperation successes."[64]

Treaty content

The finalized agreement text[65] was published on 15 April 2011 and includes 6 chapters with 45 articles:

Chapter I: Initial Provisions and General Definitions
Section 1: Initial Provisions (Article 1: Relation to Other Agreements, Article 2: Nature and Scope of Obligations, Article 3: Relation to Standards Concerning the Availability and Scope of Intellectual Property Rights, Article 4: Privacy and Disclosure of Information)
Section 2: General Definitions (Article 5: General definitions)
Chapter II: Legal Framework For Enforcement of Intellectual Property Rights
Section 1: General Obligations (Article 6: General Obligations with Respect to Enforcement)
Section 2: Civil Enforcement (Article 7: Availability of Civil Procedures, Article 8: Injunctions, Article 9: Damages, Article 10: Other Remedies, Article 11: Information Related to Infringement, Article 12: Provisional Measures)
Section 3: Border Measures (Article 13: Scope of the Border Measures, Article 14: Small Consignments and Personal Luggage, Article 15: Provision of Information from the Right Holder, Article 16: Border Measures, Article 17: Application by the Right Holder, Article 18: Security or Equivalent Assurance, Article 19: Determination as to Infringement, Article 20: Remedies, Article 21: Fees, Article 22: Disclosure of Information)
Section 4: Criminal Enforcement (Article 23: Criminal Offences, Article 24: Penalties, Article 25: Seizure, Forfeiture and Destruction, Article 26: Ex Officio Criminal Enforcement)
Section 5: Enforcement of Intellectual Property Rights in the Digital Environment (Article 27: Enforcement in the Digital Environment)
Chapter III: Enforcement Practices
Article 28: Enforcement Expertise, Information, and Domestic Coordination, Article 29: Management of Risk at Border, Article 30: Transparency, Article 31: Public Awareness, Article 32: Environmental Considerations in Destruction of Infringing Goods
Chapter IV: International Cooperation
Article 33: International Cooperation, Article 34: Information Sharing, Article 35: Capacity Building and Technical Assistance
Chapter V: Institutional Arrangements
Article 36: The ACTA Committee, Article 37: Contact Points, Article 38: Consultations
Chapter VI: Final Provisions
Article 39: Signature, Article 40: Entry Into Force, Article 41: Withdrawal, Article 42: Amendments, Article 43: Accession, Article 44: Texts of the Agreement, Article 45: Depositary

Article 9: Damages

Article 9, §1 states that a Party's judicial authorities may consider inter alia any legitimate measure of value submitted by a rights holder, including lost profits, the value of infringed property as per market price, or the suggested retail price. This clause has received considerable criticism for its validity, as well as its similarity to previously controversial attempts at establishing precedent to the same effect. According to the Foundation for a Free Information Infrastructure, the principle does not "reflect the economic loss suffered by the right holder".[66][67] In a Business Line opinion piece, a professor from the Indian Institute of Foreign Trade's Centre for WTO Studies also explained that it would lead to "excess valuation" in infringement suits.[68]

Article 41: Withdrawal

Signatories may withdraw by submitting written notification to the Depositary.

Positions

G8

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.[5]

European Union

The European Union is represented in the negotiations by the European Commission, the EU Presidency and EU Member States.[42]

A draft Report from 26 August 2008 by the European Commission tried to establish a mandate from the European Parliament for the negotiation of ACTA.[69] On 25 September 2008 the Council of the European Union adopted a resolution in support of ACTA.[70] In November 2008 the European Commission describes ACTA as an attempt to enforce intellectual property rights and states that countries involved in the negotiations see intellectual property rights as "a key instrument for their development and innovation policies". It argues:

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.[1]

In March 2010, a leaked draft negotiation text showed that the European Commission has proposed language in ACTA to require criminal penalties for "inciting, aiding and abetting" certain offenses, including "at least in cases of wilful trademark counterfeiting and copyright or related rights piracy on a commercial scale."[71] In a report published on the 11 March 2009 the European Parliament called on the European Commission to "immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available".[72]

The European Parliament resolution of 10 March 2010 on the transparency and state of play of the ACTA negotiations states that "according to documents leaked, the ACTA negotiations touch on, among other things, pending EU legislation regarding the enforcement of IPRs (COD/2005/0127 – Criminal measures aimed at assuring the enforcement of intellectual property rights (IPRED-II)) and the so-called "Telecoms Package" and on existing EU legislation regarding e-commerce and data protection." The resolution furthermore states, "whereas the ongoing EU efforts to harmonise IPR enforcement measures should not be circumvented by trade negotiations which are outside the scope of normal EU decision-making processes." Also, that the enforcement of intellectual property rights (IPRs), including patent, trademark, and copyright law, must be "accomplished in a manner that does not impede innovation or competition, undermine IPR limitations and personal data protection, restrict the free flow of information or unduly burden legitimate trade."[72]

The resolution calls for the European Commission and the European Council to "grant public and parliamentary access to ACTA negotiation texts and summaries, in accordance with" the Lisbon Treaty and "Regulation 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents." In the resolution the European Parliament "deplores the calculated choice of the parties not to negotiate through well-established international bodies, such as WIPO and WTO, which have established frameworks for public information and consultation". The European Parliament asserts that under the Lisbon Treaty the European Commission needs to provide "immediate and full information" to the European Parliament on international treaties, such as ACTA. The resolution also "stresses that, unless Parliament is immediately and fully informed at all stages of the negotiations, it reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives".[72]

United States

It has been reported that the Office of the U.S. Trade Representative has stated they will use the Fast track negotiating authority (Trade Promotion Authority) to implement ACTA, but will actually use the form of an executive agreement.[73]

Border searches

Potential border searches are covered by the "Border Measures" proposal of ACTA. As of February 2009, and according to University of Ottawa law professor Michael Geist, there is significant disagreement among countries on this topic: "Some countries are seeking the 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."[74] Newspapers reported that the draft 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.[3][75]

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."[76][77] US Senator Russell Feingold called the policies "truly alarming" and proposed to introduce legislation to require reasonable suspicion of illegality and to prohibit racial profiling.[76] The Ninth Circuit Court of Appeals has previously upheld the constitutionality of laptop searches without reasonable suspicion at border crossings.[76]

An ACTA fact sheet updated in November 2008, published by the European Commission, states:

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 iPod music player or laptop computer, and there is no intention to change this.[1]

Criticism

Secrecy of negotiations

The Electronic Frontier Foundation (EFF) opposes ACTA, calling for more public spotlight on the proposed treaty.[8] Since May 2008 discussion papers and other documents relating to the negotiation of ACTA have been uploaded to Wikileaks,[22] and newspaper reports about the secret negotiations swiftly followed.[3][75][78]

In June 2008, Canadian academic Michael Geist, writing for Copyright News, argued that "Government Should Lift Veil on ACTA Secrecy", noting that 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 argued 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 argued 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 reported 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 argued 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".[6]

In November 2008, the European Commission responded to these allegations 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.[1]

Another controversy is that EU Council has published official press release on ACTA in Agriculture And Fisheries Meeting report.[79]

Threats to freedom and fundamental human rights

An open letter signed by many organizations, including Consumers International, EDRi (27 European civil rights and privacy NGOs), the Free Software Foundation (FSF), the Electronic Frontier Foundation (EFF), ASIC (French trade association for web 2.0 companies), and the Free Knowledge Institute (FKI), states that "the current draft of ACTA would profoundly restrict the fundamental rights and freedoms of European citizens, most notably the freedom of expression and communication privacy."[7] The Free Software Foundation argues that ACTA will create a culture of surveillance and suspicion.[15] Aaron Shaw, Research Fellow at the Berkman Center for Internet & Society at Harvard University, 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".[14]

The Free Software Foundation (FSF) 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."[15] ACTA would also require that existing ISPs no longer host free software that can access copyrighted media; this would substantially affect many sites that offer free software or host software projects such as SourceForge. Specifically, the FSF argues that ACTA will make it more difficult and expensive to distribute free software via file sharing and P2P technologies like BitTorrent, which are currently used to distribute large amounts of free software. The FSF also argues that ACTA will make it harder for users of free operating systems to play non-free media because DRM protected media would not be legally playable with free software.[15]

On 10 March 2010, the European Parliament adopted a resolution[80] criticizing the ACTA with 663 in favor of the resolution and 13 against, arguing that "in order to respect fundamental rights, such as the right to freedom of expression and the right to privacy" certain changes in the ACTA content and the process should be made.[80]

Legal scope

Nate Anderson with Ars Technica pointed out that ACTA encourages service providers to collect and provide information about suspected infringers by giving them "safe harbor from certain legal threats". Similarly, it provides for criminalization of copyright infringement on a commercial scale,[81] granting law enforcement the powers to perform criminal investigation, arrests and pursue criminal citations or prosecution of suspects who may have infringed on copyright on a commercial scale. 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.

Since ACTA is an international treaty, it is an example of policy laundering used to establish and implement legal changes. Policy laundering allows legal provisions to be pushed through via closed negotiations among private members of the executive bodies of the signatories. This method avoids use of public legislation and its judiciary oversight. Once ratified, companies belonging to non-members may be forced to follow the ACTA requirements since they will otherwise fall out of the safe harbor protections. Also, the use of trade incentives and the like to persuade other nations to adopt treaties is a standard approach in international relationships. Additional signatories would have to accept ACTA's terms without much scope for negotiation.[82]

From 16–18 June 2010, a conference was held at the Washington College of Law, attended by "over 90 academics, practitioners and public interest organizations from six continents".[26] Their conclusions were published on 23 June 2010 on the American University Washington College of Law website. They found "that the terms of the publicly released draft of ACTA threaten numerous public interests, including every concern specifically disclaimed by negotiators." A group of 75+ law professors has signed a letter to President Obama demanding a host of changes to the agreement. The letter alleges that no meaningful transparency has been in evidence.[27]

Parallels with SOPA and PIPA

Connor Adams Sheets of the International Business Times outlined five categories where digital rights advocates compared but expressed greater concern about ACTA than SOPA. Among these were the treaty's broader international nature, its fundamental lack of transparency, the relative ease of enactment, the degree of support by signatories, and a lack of visibility on the global political stage.[83] Forbes writer E.D. Kain compared the characteristics of ACTA with that of SOPA and PIPA, noting that they were each "defined by [their] opacity: secret negotiations, closed door talks, no public discussion."[84]

Requests for disclosure

In September 2008, a number of interest 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 Canadian Library Association, the Consumers Union of Japan, the National Consumer Council (UK) and the Doctors without Borders' Campaign for Essential Medicines.[23] The Electronic Frontier Foundation (EFF) and Public Knowledge have filed a FOIA request which was denied.[5][24]

Australia

A coalition of concerned organisations submitted to the responsible Australian Government department, the Department of Foreign Affairs and Trade.[85]

The submission agreed that reducing counterfeiting is important where it endangers consumer health or safety, or constitutes commercial scale infringement. However, the coalition urged that pursuit of that goal should not threaten legitimate commercial, social, innovative and creative activities, the rights of consumers or the free flow of information. The coalition noted the current proposed treaty raised serious concerns with respect to transparency, increased customs search powers, increased penalties for IP infringement, and lack of due process.

The coalition consisted of:

  • the Australian Digital Alliance – a public interest copyright organisation advocating for an appropriately balanced copyright regime;
  • the Australian Library and Information Association – the peak professional organisation for the Australian library and information services sector;
  • Choice – a not-for-profit consumer organisation that campaigns on behalf of Australian consumers; and
  • the Internet Industry Association – Australia's national Internet industry organisation that provides policy input to government and advocacy on a range of issues.

Canada

The University of Ottawa's Canadian Internet Policy and Public Interest Clinic filed an access to information request but received only a document stating the title of the agreement, with everything else blacked out.[3]

European Union

In November 2008, the Foundation for a Free Information Infrastructure (FFII) requested secret Anti-Counterfeiting Trade Agreement (ACTA) documents from the EU Council, specifically naming 12 documents to be published.[86] 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".[87] In March 2009, the European Parliament passed a resolution demanding greater transparency in public affairs, which among other things called on the European Commission to make public all documents relating to the negotiations.[88]

New Zealand

In August 2009, a coalition[89] of NGOs and individuals formed to request more transparency in ACTA negotiations. At briefings held by the Ministry of Economic Development (MED) and the Ministry of Foreign Affairs and Trade (MFAT) on 16 December 2009, representatives from the coalition organisations supported the New Zealand negotiators stated desire to call for more transparency. In December 2009 two New Zealand members of Parliament, Clare Curran (Labour) and Peter Dunne (United Future) also publicly questioned the need for secrecy.[90][91]

In March 2010, Tech Liberty, a NZ digital civil rights organisation, received a response to its Official Information Act request on ACTA.[92] It was given letters from MED and MFAT plus the May 2008 cabinet paper[93] in which the NZ government agreed to participate in ACTA. Portions of the cabinet paper, and answers to questions posed by TechLiberty, were withheld including the venue for the April 2010 ACTA negotiations, the cabinet discussion paper on participation in ACTA, and all copies of draft negotiation texts, and all documents expressing NZ's negotiating position. This information was withheld under Official Information Act provisions allowing for withholding of information where it would prejudice the international relations of the Government of New Zealand, where it would affect the privacy of natural persons, where it was required to maintain the effective conduct of public affairs, and where withholding information was required to enable the government to carry on negotiations (including commercial and industrial negotiations).

In the months before the 8th round of ACTA negotiations took place in April 2010, the Government of New Zealand briefed media that they are now championing greater transparency in the negotiation.[39]

United States

Both the Bush administration and the Obama administration had rejected requests to make the text of ACTA public, with the White House saying that disclosure would cause "damage to the national security."[94] In 2009, Knowledge Ecology International filed a FOIA (Freedom of Information Act) request in the United States, but their entire request was denied. The Office of the United States Trade Representative's Freedom of Information office stated the request was withheld for being material "properly classified in the interest of national security."[95] US Senators Bernie Sanders (I-VT) and Sherrod Brown (D-OH) penned a letter on 23 November 2009, asking the United States Trade Representative to make the text of the ACTA public.[96]

Protests

File:ACTA protest by members of the Polish parliament.jpg
Polish members of parliament hold up Guy Fawkes masks in protest of the treaty. The bottom right mask features a teardrop, and one individual gestures with the V sign which, in Poland, is commonly associated with the Solidarity movement's historical protests where demonstrators used it to express that they would seize victory. The gesture eventually became epitomized by Tadeusz Mazowiecki, who symbolically used it after winning the country's first partially free elections since the induction of Soviet hegemonic rule.[97][98]

Public demonstrations in Poland

Polish social sites Demotywatory.pl, JoeMonster.org, Kwejk.pl, AntyWeb.pl and Wykop.pl announced that they were considering a blackout similar to the SOPA-inspired 2012 Wikipedia blackout to protest Poland's plan to sign the Anti-Counterfeiting Trade Agreement.[99] After Poland's announcement on 19 January 2012 that it would sign the treaty on 26 January, a number of Polish government websites were shut down by denial of service attacks that started on 21 January.[60] Websites included those of the Chancellery of the Prime Minister, Ministry of Culture and National Heritage, the President, and the Sejm.[61] Over a thousand people protested in front of the European Parliament office in Warsaw on January 24.[100] On January 25, at least 15,000 demonstrated in Kraków, 5,000 in Wrocław, with considerable protests in cities across the country.[101][12] A poll conducted on January 27 by Millward Brown SMG/KRC indicated that 64% of Poles opposed the agreement's signing, 60% believed the treaty would fail to achieve its primary objective, and 50% thought that it would curtail essential freedoms.[102] On January 27, protesters across the country numbered in the tens of thousands.[103] An interactive map of protests is being maintained on RMF 24 radio's website.[104]

Following the demonstrations, Interia.pl and RMF FM facilitated 1.8 million emails to members of parliament related to ACTA, with 97% of those participating being opposed to the treaty.[105]

Polish parliament

On 26 January 2012 a group of Polish politicians expressed disapproval of the treaty by holding up Guy Fawkes masks during parliamentary proceedings.[106][107] Mike Masnick of Techdirt noted that the handmade masks were themselves symbolically "counterfeit," as Time Warner owns intellectual property rights to the masks and typically expects royalties for their depiction.[108][109] Polish opposition right-wing party Law and Justice called for a referendum on ACTA.[110]

EU Rapporteur's resignation

Kader Arif, European rapporteur for ACTA, resigned from his position on 26 January 2012 denouncing the treaty "in the strongest possible manner" for having "no inclusion of civil society organisations, a lack of transparency from the start of the negotiations, repeated postponing of the signature of the text without an explanation being ever given, [and] exclusion of the EU Parliament's demands that were expressed on several occasions in [the] assembly," concluding with his intent to "send a strong signal and alert the public opinion about this unacceptable situation" and refusal to "take part in this masquerade."[10][11]

Petitions

On January 30, a petition at jestemprzeciwacta.pl seeking referendum in Poland had reached more than 300,000 signatures.[111][112] A similar EU-wide petition at Avaaz.org collected 1.1 million signatures by the same time.[113][114]

See also

Related treaties and laws
Related organizations
Related topics

References

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External links

Wikisource has original text related to this article:
Official ACTA sites
Treaty text
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