I’ll try to briefly put together the main aspects that have surfaced so far. It seems to suffer from both procedural as well as substantive defects.
Firstly, who are the members of the Agreement?
It is currently being negotiated in secret meetings between the governments of Australia, Canada, the European Union (represented by the European Commission, and the European Union President), Japan, Jordan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, the United Arab Emirates, and the United States. However, due to globalization and trade across borders, there will be a push towards harmonization of copyright laws across all countries, effectively meaning that in this internet age, this Agreement is relevant for everyone.
Why is there so much hue and fuss about transparency concerns?
The lack of transparency also includes the lack of public consultation. Due to its nature, the ACTA, if signed and ratified, would lead to the necessity of harmonizing domestic and international laws to comply with the agreement. Thus, laws reached at by an un-democratic process will be governing signatory countries and will cause even non-signatory countries to take it into consideration at least, if not comply with it altogether. Adding fuel to the fire, is the behaviour of the negotiating states bent on keeping it non-transparent. They have gone out of their way to ensure that it remains a secret through means of secret meetings, Non-Disclosure Agreements and Obama even stating that the copyright treaty was a matter of national security and hence couldn’t be disclosed to the public. Public discussion is actively being denied while at the same time, several large industry members are being invited to participate in its discussion.
Why do we need the ACTA?
This can be broken into 2 subquestions:
– Do we need another Agreement at all?
Simply speaking, we don’t. The assumption here is that ‘we’ does not solely refer to large corporates, since it would make sense for them to make an alternative treaty to which the consumers interest was not allowed to be taken into consideration via public discussion or any other method. There already exists a framework for international intellectual property law in the form of the TRIPS Agreement. This appears to be a blatant circumvention of the existing framework of law.
– Are stronger copyright laws necessarily the way forward?
This is a topic that has given rise to much debate, usually between corporate lobbyists, a strong consolidated party & some lawyers and academicians on one hand versus a more diluted number of academicians, organisations, nonprofits and individuals on the other hand – and therefore one that requires much more literature that I can provide here. However the fact that it is such a debatable question does mean that it requires equal input from all sides before any policy decision is made on it.
What does it deal with?
Even the title of the Agreement seems to be misleading. ‘Counterfeits’ are only part of the larger enforcement and protection of copyright treaty that it seems to be. While there isn’t even a global definition of ‘counterfeiting’ (which is generally confused with all forms of infringement-which the treaty deals with), it generally refers to the imitation and passing off of a good as a genuine one. So why use ‘counterfeit’ when they actually mean ‘copyrights’? One view that is going around, which I’d be likely to agree with is that it is merely a sly use of semantics. A policy maker automatically needs to explain in more stringent detail why she is against an Anti-Counterfeit Treaty (a phrase heavy with implication) as opposed to saying she is against a Copyright Treaty (much more neutral term).
Essentially it appears to be changing the line from balancing interests of copyright holders and users, to one that is more in favour of copyright holders. So far it is understood that the discussions have mainly rallied around Civil Enforcement (damages and injunctions), Border Measures (ex-officio suspension rights and powers), Criminal Enforcement and IPRs in the Digital Environment.
Of the leaked documents, one pertains to the internet chapter of the ACTA. Much criticism has arisen over the provisions which have shifted the burden of enforcing the copyrights off the holders and onto third parties – this includes having ISPs enforce the much debated ‘3 strikes and you’re off the internet’ rule, Technological Protection Methods (TPM) and Digital Rights Management rules.
Due to the haze of vague information being officially given out, it is difficult to say what exactly it contains. The official statements that have been released on it, are sometimes contradictory not only with the leaked papers, but also with the statement itself! For eg., Australia’s Department of Foreign Affairs and Trade Summary of Key Elements under Discussion state that the ACTA will be consistent with the TRIPS agreement, and then in the very next paragraph state that it aims to build on existing framework such as TRIPS – disregarding that Article 1 of the TRIPS says that member states shall not be obliged to use protection more extensive than that in the TRIPS Agreement.
As mentioned, a lot of pressure has been growing on the negotiators to reveal the undergoing process. In order to facilitate and promote more analytical inputs on the text and working of the ACTA, the Program on Information Justice and Intellectual Property (PIJIP) at WCL, has done a commendable job by putting together a research resource site where researchers can find what is out there already (leaked texts, links to blogs and NGO sites, etc.) on the ACTA. The first draft of this website is up here.
We certainly hope that these kinds of initiatives as well as those that they encourage go a long way into ensuring more transparency as well as inclusive and effective discussions into these policy questions.
