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What is ACTA?
ACTA stands for the “Anti-Counterfeiting Trade Agreement”. First announced in late 2007, the U.S., the EU, Switzerland, and Japan said they would negotiate a new intellectual property enforcement agreement to counter the illegal counterfeit goods trade across borders.
The U.S. signed it last October, along with other major economies like Australia, Canada, South Korea and Japan. European member states still have to wait for the European Parliament to agree.
What does ACTA cover?
Initially it was thought that ACTA would enable governments to effectively work together in tandem across borders to prevent counterfeit goods, like medicines and knock-off technology goods for example, from entering the market. The Act aims to protect the economy and end-consumers’ confidence.
But it is becoming increasingly clear that though the ACTA name uses the word “counterfeiting” in its title, it vastly focuses on the transfer of copyrighted materials online. The agreement will make it easier for law enforcement and ISPs (’intermediaries’) to monitor consumers, and impose new criminal sanctions on those who flout copyright and patent laws.
Who is signing up to ACTA?
Many major countries on the world stage have been involved in the discussions. Australia, Canada, Japan, Jordan, South Korean, Mexico, Morocco, New Zealand, Singapore, Switzerland, the United Arab Emirates — and of course — the United States.
More recently, 20 European Union member states signed up to the agreement, including the UK and notably Poland, which saw widespread protests, bringing the issue further into the public limelight.
Is ACTA a law?
No, it is neither a law nor a treaty. ACTA is a “trade agreement”, which allows countries to work in alignment on certain matters. It is similar to SOPA/PIPA in that it will battle copyright infringement, but expand to patents, counterfeit goods and intellectual property rights.
ACTA supporters say that it will not change U.S. law, nor can it change U.S. law, because that would be unconstitutional. Because it is a “sole executive agreement”, it allows the President to sign it without additional support from the Senate, and therefore without scrutiny. Some argue that because ACTA is vague in places, it could be interpreted to require changes to U.S. law.
Who will enforce ACTA?
The agreement will create an “ACTA Committee” to make amendments to the agreement. The problem is that this committee is not accountable to anybody. It is outside the public and judicial process, and not accountable to a nation or an international body. The committee won’t even be accountable to those countries governed by the agreement, including the U.S. government and the European Commission.
As ReadWriteWeb explains: “Folks in the United States can vote out Lamar Smith and others who endorsed SOPA/PIPA, but we would have no real influence on the ACTA Committee.”
Why such an upheaval?
There are numerous reasons. ACTA’s provisions would have been as effective as SOPA and PIPA, before they were shelved. Many intrusive elements of ACTA have since been removed, thanks to the European legislators.
The remainder of the provisions, though watered down, still pose a significant impact on end Web users and ordinary consumers — while the Canadian government notes that ACTA is “not designed to be intrusive.”
There is also a broad scope of definitions; too broad, some have argued. The EDRI notes that: “ACTA provides an extremely low threshold for imposing criminal sanctions.” This means that should a person, a company, or even a government accidentally or unintentionally infringe copyright, this could be considered a criminal act. Further into this, what used to be a civil offence can now be deemed a criminal offence [PDF].
Is ACTA actually shrouded in secrecy?
Some claim that ACTA is a “secret” agreement. In fact, it has been made public for some time. But the negotiations themselves were behind closed doors. A leaked U.S. diplomatic cable, however, said that the ACTA negotiations had been “set at a higher level than is customary for non-security agreements”, leading to some criticising the build-up phase as ’state secrecy’.
Could ISPs be liable for their customers’ illegal activity?
ISPs are currently not liable for what their customers do. ACTA proposed that ISPs would be partly if not wholly responsible for what their customers get up to, including illegal file-sharing. But these measures have since been removed. Reduced to a mere footnote in the text, countries can now do as much or as little as they like to limit ISP liability.
Will ISPs be forced to snoop on its users?
ACTA could give governments new powers to deal with “Internet distribution and information technology”. While ISPs could have been forced into blocking sites that infringe copyright — or even worse — forced into installing “mandatory network-level filtering” at ISP-level, these measures have since been removed from ACTA.
The European Union adopted an Internet freedom provision, stating that any measures taken by EU member states that affect citizen’s access to the Internet “must respect the fundamental rights and freedoms of citizens”. That taken into account, it did say that European citizens are entitled to a “fair and impartial procedure” before any Web-restricting measures can be imposed.
Could a ‘three-strikes’ rule become a universal sanction?
U.S. negotiators were intent on requiring ISPs to adopt a three-strikes rule on serial copyright infringers. France already has a three-strikes rule, which the government claimed recently to be a ‘success’.
But the European Parliament voted in 2010 to not pass ACTA if it includes a three-strikes rule; measures which are staunchly backed by the MPAA and the RIAA. It does not guarantee that the U.S. will not enact a three-strikes rule, but it means that signing European member states will not be able to.
Will DMCA takedown notices now go worldwide?
The U.S. currently has a notice-and-takedown system under the Digital Millennium Copyright Act (DMCA). If you have ever seen a ‘missing’ search result in Google, that’s what it is. It allows rights-holders to send a notification to a party infringing copyright that they are doing so, and to take it down or face court. On the whole, the system works.
But the U.S. has since climbed down from its attempts to essentially push its DMCA system on the rest of the world. Still, there is hope that the equally controversial TPP agreement (see below) could push for such changes.
“ACTA makes access to medicines more difficult”: Is this true?
One of the worries is the vague language used by the text. Generic drugs are at risk of being considered illegal, and could be confiscated at borders, making the global fight against disease far more difficult.
Corporations would in effect be able to prevent generic, non-branded medicines and drugs from reaching those who need them. Counterfeit drugs can be dangerous, cause more harm than good, and can kill. Such ‘grey market’ drugs can infringe patents belonging to pharmaceutical giants, but are far cheaper for both poorer nations and for NGO’s to buy from charitable fundraising.
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01-29-2012, 06:16 PM
