In
the words of the Prime Minister David Cameron, “getting
online can help people save money, find a job, access services in a
way that works for them, and make connections with each other and
with their community.”1 As we have seen, the Digital Economy Act
threatens these activities, possibly disconnecting families. On a
global level, governments have been working on a major new agreement
(ACTA) to regulate "counterfeit goods", such as fake
handbags and drugs or commercial-scale illegally copied DVDs, which
has been extended to cover the Internet and much else.
What
is ACTA?
ACTA
is the Anti-Counterfeiting Trade Agreement, which is currently being
negotiated, largely in secret, between the United States, the EU and
9 other countries.2 This draft agreement seeks to regulate a wide
range of copyright, patents and trademark issues, including, most
controversially, providing for additional regulation of the Internet.
There have been a number of leaks (here,
here,
here
and here)
and the European Commission published an official draft text on 22
April.
ACTA
is a covert attempt, at the global level, to further reduce the
public interest element in copyright, patents and trademarks, in the
balance between the rights of creators, users, and the public at
large, without proper debate and scrutiny in each nation state. The
current form of ACTA is a threat to future innovation and freedom of
citizens. ACTA is primarily driven by the US and the EU. Developing
countries such as India and Brazil have been shut out of the process
from the start.
This
agreement has been developed primarily by the EU and USA and has
little substantive democratic oversight. The supporters of ACTA are
the governments of key developed countries and bodies such as the
RIAA (Recording Industry Association of America). It is further
outrageous that ACTA is not being negotiated as part of the WIPO or
the WTO, where similar treaties were negotiated. One or two
developing nations close to US trade policy, such as Mexico and Saudi
Arabia, are also part of the negotiations.
How
does ACTA fit in with international trade?
ACTA
seeks to create an agreement between nations with a strong interest
in high protection for intellectual property. They will then seek new
partners to agree to these strong protections, who will be unable to
influence the Treaty. The USA in particular has had a strategy of
creating very strong protection for its goods through 'bilateral
agreements' whereby they open up their lucrative markets to
developing nations, in return for signing specific agreements. These
tactics are likely to be used to 'encourage' developing nations to
sign up to ACTA.
This
is why the lack of involvement from a wide range of nations is so
concerning. From the outside, it seems like a deliberate attempt to
create a strong enforcement regime that is ill-suited to developing
nations, largely in order to export the model through future trade
negotiations.
International
agreements on Intellectual Property have been increasingly made
through the United Nations, and WIPO (Word Intellectual Property
Office), resulting in treaties such as TRIPs, which have sought to
balance rights of users as well as owners. These treaties often also
recognise that strong IP protections are not always appropriate for
small nations, whose law enforcement priorities may be, for instance,
in tackling corruption or trade in drugs or armaments, rather than
strictly enforcing the trade in jeans and hand bags.
ACTA
is an audacious attempt at globalising some of the worst elements of
the (UK) Digital Economy Act 2010 with additional bells on. Such has
been the secrecy and unnecessary nature of ACTA that all EU citizens
have been short changed both on their right to access relevant ACTA
documents, but also the right to good administration.
What
is wrong with ACTA?
(i)
New enforcement duties and costs to ISPs and their customers
There
are many problems with ACTA. In the context of the Internet, under
Section 4 of the draft text ISPs may be forced to remove material,
which they believe (rightly or wrongly) makes use of protected
material, regardless of whether any actual infringement is occurring.
In order to protect themselves from liability, ISPs may have to
resort to technical measures such as bandwidth throttling, data
monitoring and indeed “3-strikes”. The fact that those measures
are not explicitly referred to in the ACTA text is irrelevant as ISPs
may feel that they are the only tools they have to ensure compliance
with the law. Thus, our freedom of expression and possibly our
privacy in the online environment would be considerably curtailed.
(ii)
Internationalising legal protections for DRM
ACTA
also contains provisions on “anti-circumvention” of digital locks
(DRM and 'technical protection mechanisms'). These are notorious for
preventing users from exercising basic rights, such as making back up
copies, format shifting for private use, and quotation for criticism
and review. These provisions could globalise the worst aspects of EU
and US law, without the appropriate balancing provisions in favour of
users and the public interest at large.
(iii)
Punitive procedures: guilty until proven otherwise?
There
is also an attempt to replace judicial procedures with
“administrative” procedures for the determination of, for example
copyright infringement. This would avoid the scrutiny and
requirements of appropriate evidence and proper contestation.
European citizens deserve the right to be heard in court if they are
accused of infringement. Fair due process must be guaranteed.
It
is entirely inappropriate that the draft ACTA text criminalises
infringement (ACTA Section 3). IP rights are typically regarded as a
matter of civil law. Moreover, we find the sections on preventing
“imminent infringement” to be unacceptable. Whether infringement
has taken place is often a finely balanced consideration; there are
also the many defences and exceptions to infringement and public
interest issues to be considered. These ACTA provisions are
oppressive and contrary to freedom of expression and contrary to the
public good.
In
addition we are concerned that provisions on damages that can be
awarded if infringement is proven are also entirely disproportionate
and not based on actual damage done to the rights holder.
(iv)
Access to medicines and GMOs
Another
issue of significant concern has been the threat to legitimate
generic medicines. As patents are national, goods under patent in the
country of manufacture and the destination country may be illicit in
one or more country they pass through. ACTA could force those
countries to seize these medicines in transit. Currently, it seems
that patents have been dropped from the “Border Measures” chapter
(Section 2 in the ACTA draft), however trademarks are still included
and the EU has stopped some medicines under this provision.
The
impact on GM seeds and goods covered by patents has also not been
fully examined, but could be concerning.
Can
we read the ACTA agreement?
The
current draft of the treaty was not published officially, but was
leaked
in July. The EU Parliament forced the negotiators to open the treaty,
but after this last round in Lucerne in June, MEPs were only allowed
to view the text if they agreed not to share the contents with the
citizens they represent. This led to Pirate MEP Christian Engström
to refuse
to examine the text.
What
happens next?
The
intention appears to be to complete the Treaty as quickly as
possible, no doubt because opposition is mounting. Rounds of
negotiations were taking place every 6 months, but two new rounds are
scheduled, in Washington DC and Japan. The UK's official position
seems to be that any final treaty will not create new changes to UK
law - but academics
disagree. Meanwhile, the EU Parliament seems likely to signal
their opposition again, as they are a handful of signatures short of
passing a Written
Declaration (W12/2010).
What
can I do?
Write
to your MEP and ask them to sign Written Declaration 12/2010.
Join
the ACTA
Facebook group.
Blog
about it, and spread the word.
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