Anti-Counterfeiting Trade Agreement

What is ACTA?

In October 2007 the United States, the European Community, Switzerland and Japan simultaneously announced that they would negotiate a new intellectual property enforcement treaty, the Anti-Counterfeiting Trade Agreement, or ACTA. Australia, the Republic of Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates and Canada have joined the negotiations. Although the proposed treaty’s title might suggest that the agreement deals only with counterfeit physical goods (such as medicines), what little information has been made available publicly by negotiating governments about the content of the treaty makes it clear that it will have a far broader scope, and in particular, will deal with new tools targetting “Internet distribution and information technology”.

In recent years, major U.S. and EU copyright industry rightsholder groups have sought stronger powers to enforce their intellectual property rights across the world to preserve their business models. These efforts have been underway in a number of international fora, including at the World Trade Organization, the World Customs Organization, at the G8 summit, at the World Intellectual Property Organization’s Advisory Committee on Enforcement, and at the Intellectual Property Experts’ Group at the Asia Pacific Economic Coalition. Since the conclusion of the WTO Agreement on Trade-Related Issues of Intellectual Property in 1994 (TRIPS), most new intellectual property enforcement powers have been created outside of the traditional multilateral venues, through bilateral and regional free trade agreements entered into by the United States and the European Community with their respective key trading partners. ACTA is the new frontline in the global IP enforcement agenda.

To date, disturbingly little information has been released about the actual content of the agreement However, despite that, it is clearly on a fast track; treaty proponents want it tabled at the G8 summit in July, and completed by the end of 2008.

Why You Should Care About It

ACTA has several features that raise significant potential concerns for consumers’ privacy and civil liberties, for innovation and the free flow of information on the Internet, legitimate commerce, and for developing countries’ ability to choose policy options that best suit their domestic priorities and level of economic development.

ACTA is being negotiated by a select group of industrialized countries, outside of existing international multilateral venues for creating new IP norms such as the World Intellectual Property Organization and (since TRIPs) the World Trade Organization. Both civil society and developing countries are intentionally being excluded from these negotiations. While the existing international fora provide (at least to some extent) room for a range of views to be heard and addressed, no such checks and balances will influence the outcome of the ACTA negotiations.

The Fact Sheet published by the USTR, together with the USTR's 2008 "Special 301" report make it clear that the goal is to create a new standard of intellectual property enforcement, above the current internationally-agreed standards in the TRIPs Agreement, and increased international cooperation including sharing of information between signatory countries’ law enforcement agencies. The last 10 bilateral free trade agreements entered into by the United States have required trading partners to adopt intellectual property enforcement obligations that are above those in TRIPs. Even though developing countries are not party to the ACTA negotiations, it is likely that accession to, and implementation of, ACTA by developing countries will be a condition imposed in future free trade agreements, and the subject of evaluation in content industry submissions to the annual Section 301 process and USTR report.

While little information has been made available by the governments negotiating ACTA, a document recently leaked to the public entitled "Discussion Paper on a Possible Anti-counterfeiting Trade Agreement" from an unknown source gives an indication of what content industry rightsholder groups appear to be asking for – including new legal regimes to "encourage ISPs to cooperate with right holders in the removal of infringing material", criminal measures, and increased border search powers. The Discussion Paper leaves open how Internet Service Providers should be encouraged to identify and remove allegedly infringing material from the Internet. However the same industry rightsholder groups that support the creation of ACTA have also called for mandatory network-level filtering by Internet Service Providers and for Internet Service Providers to terminate citizens' Internet connection on repeat allegation of copyright infringement (the "Three Strikes" /Graduated Response), so there is reason to believe that ACTA will seek to increase intermediary liability and require these things of Internet Service Providers. While mandating copyright filtering by ISPs will not be technologically effective because it can be defeated by use of encryption, efforts to introduce network level filtering will likely involve deep packet inspection of citizens' Internet communications. This raises considerable concerns for citizens' civil liberties and privacy rights, and the future of Internet innovation.

What You Can Do

Despite the potentially significant harmful impact on consumers and Internet innovation and the expedited timeframe in which the treaty is being negotiated, the citizens that stand to be directly affected by the treaty provisions have been given almost no information about its real contents, and very little opportunity to express their views on it.

But there is still time to do something to change that! If you live in the US, tell your Senators to demand more transparency in ACTA!