Looking at ACTA

14 Apr

ACTA

On a global scale, several treaties and multilateral agreements have been signed in order to bring about some form of uniformity and protection for intellectual property rights. For example, the Anti-Counterfeiting Trade Agreement (ACTA) is a plurilateral agreement for the purpose of establishing international standards for intellectual property rights enforcement. It is a broad agreement that aims to create uniform international standards to protect the rights of those who produce music, cinematic works, medicines, fashion and other products that are vulnerable to intellectual property theft.

The agreement was signed on 1 October 2011 by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea and the United States, largely without any meaningful protests. In January 2012, the European Union and 22 of its member states signed ACTA, bringing the total number of signatories to 31.

The idea for the treaty was born in October 2007, as a collaborative effort between the United States, the EU, Switzerland, and Japan. The general public remained mostly unaware of negotiations.  ACTA would set up a legal framework and independent governing body, rather than amending existing national laws in signatory countries. This would give ACTA a much wider reach than SOPA/PIPA, and would require changes to US copyright law and would be administered by US authorities. 

Counterfeiting, copyright and trademark infringements are covered by ACTA; thus, creating a one-size-fits-all instrument of enforcement which doesn’t meet the unique needs of each sector.

Furthermore, the European Parliament’s Industry, Research and Energy committee (ITRE) concerned by the lack of definition of key terminologies on which the ACTA enforcement mechanisms are based; It fears that this creates legal uncertainty for European companies and in particular SMEs, technology users, online platform and internet service providers.[1]

Amnesty International also expressed concerns that ACTA contain vague and meaningless safeguards. Instead of using well-defined and accepted terminology, the text refers to concepts such as “fundamental principles” and goes as far as inventing a legal concept of “fair process”. “Fair Process has no legal definition in international law.  “Worryingly, ACTA’s text does not even contain references to safeguards like ‘fundamental rights’, ‘fair use’, or ‘due process’[2].

While the ambition of ACTA was to strengthen key industries within the EU, it contradicts the European Parliament’s Digital Agenda which promotes net neutrality and access to the online digital market for SMEs.

SOPA/PIPA and the Digital Economy Act in the UK both required approval from their respective national legislatures to become laws — the major reason SOPA/PIPA were shelved. However, ACTA’s negotiations and signings have largely gone on behind closed doors, and they do not require the approval of national legislative bodies (which cannot undo it once ratified), or citizens, because it does not involve changes to existing laws or constitutions. 

The EU says ACTA will also not shut down any sites or cut off internet access for anyone, unlike SOPA, which threatened to target those posting pirated content on sites and host sites directly.[3]

The Committee for a Democratic United Nations (KDUN), a non-governmental think tank based in Berlin, Germany, said that the “shockingly [un]transparent and undemocratic” international negotiations for ACTA confirm the urgent need “for a global watchdog that is elected by the world’s citizens. There was no meaningful public consultation, no involvement of parliaments or elected representatives, the drafts were only published very late and after strong public protests, and on top of that, governments did invite global corporate lobbyists to provide feedback, giving them, and not the public and their elected representatives, an opportunity to influence the treaty’s regulations according to their wishes.”

…to be continued…


[1]

[2] COMMITTEE ON INDUSTRY, R. A. E. 2012. DRAFT OPINION of the Committee on Industry, Research and Energy for the Committee on International Trade on the draft Council decision on the conclusion of the Anti-Counterfeiting Trade Agreement between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic. In: PARLIAMENT, E. (ed.).

[3]COMMISSION, E. 2012. ACTA – Anti-counterfeiting Trade Agreement [Online]. European Commission.  [Accessed 15 March 2012].

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