Follow up on ACTA

Readers will remember a secretive ACTA (Anti-Counterfeiting Trade Agreement) – a proposed multi-lateral agreement with the supposed aim of fighting the growing trade of counterfeited and pirated goods world over. (I say ‘supposed’ because details of what’s actually going on in the discussion of an international agreement, which will have a large effect on most countries of the world, haven’t officially been released) The countries involved in the negotiation of its terms and provisions are USA, the EU, Japan, Canada and Australia. With the governments concerned still insisting on it remaining secretive, details of its development have been hard to come by, but thanks to some inside sources of KEI and other organisations, certain details have begun to emerge. The negotiations of this are still far from over, with many key features of its 6 main chapters yet to be discussed. There will apparently be a supervising structure, the ACTA Oversight Council, to supervise ACTA implementation, consider amendments, interpretations, and modifications to the agreement, and establish and delegate responsibilities to ad hoc working groups. According to Michael Geist’s blog and James Love of KEI, there is also disagreement over some of the language in the text. According to KEI,

“…the documents show that the EU has sought greater privacy protection for its citizens than the U.S. and Japan. They also reveal that the EU has sought provisions which would state that seizures of infringing goods by customs officials must not impair legitimate trade, and which would exempt officials from legal liability for their actions.”

(This may remind readers of the Losartan controversy where there was a seizure of ‘in transit’ consignments.)

He also says “Overall, the documents reveal that the U.S. has sought enforcement provisions largely along the lines of those contained in the text of the bilateral free trade agreement the U.S. negotiated with Korea. This is in line with the statements by the Office of the U.S. Trade Representative on the Korea FTA being the basis for the ACTA enforcement provisions.”

Geist writes that of the six proposed chapters, most of the discussion so far has revolved around the Enforcement of IPR chapter. This is further broken down into 4 sections – civil enforcement, border measures, criminal enforcement, and Rights Management Technology/the Internet. However, what’s worrying is that, as predicted earlier, the legislation seems to be tending towards a far stronger protectionist regime than is required (for the non-industrial stakeholders at least). The lack of certain parties, or rather, the inclusion of only certain parties into the developments – industrial parties– is showing in its policies. Amongst other controversial provisions, there are proposals from the USA which would make both commercial and non-commercial infringement a criminal offence. Put simply – p2p file sharing could potentially land you in jail. Other criminal activities would include fake packaging for movies or music, and unauthorized camcording.

There is also a proposed provision on injunctions which does not fall in line with Art. 44.2 of the TRIPS as well as several other national laws. The provision gives the power to the judicial authority to issue interlocutory injunctions to prevent imminent infringement, but disregards that the TRIPS provides limitations to this power. Aside from TRIPS, it should be pointed out that it is also not in line with some of the national legislation of the parties involved. With these discussions being held behind closed curtains, this means one of two things. Firstly, that the negotiators involved are not aware of their own domestic legislation and current international obligations. Or secondly, that they don’t care.

To me atleast, continuing on from my previous post, it seems like the countries (and parties) involved are merely using this Agreement to bypass existing legislation and create their own for their own purposes, which will then trickle down into domestic legislation. I can almost hear the IP protectionists saying that these changes were absolutely necessary in order fulfill their international obligations. (and I’m not the only one – techdirt on the same issue).

However, as mentioned earlier, there still seems to be a good amount of discussion left. And there is also the factor of the new Obama government which could possibly change/influence the way the discussions go. We can hope that the governments/parties involved realize, albeit late in the day, that their citizens have a right to know the proceedings of these discussions.

For portions of the leaked documents and KEI’s take on it, check here.



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