The Anti-Counterfeiting Trade Agreement is a multinational treaty intended to create a new international legal framework for the enforcement of intellectual property rights. The treaty was formally published in April 2011, signed by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea, the US, and the EU. It will not come into force until six countries have ratified the agreement; so far, none has.
The treaty provoked street protests across Europe for two reasons: it undermines rights such as freedom of expression and privacy, and it was negotiated in secret discussions from which civil society, developing countries, the public, and even experts were excluded. In January 2012, the EU signed (but did not ratify) the treaty. In response, the European Parliament's rapporteur for ACTA, Kader Arif, resigned in protest, calling the negotiations a "masquerade".
In February, the European Commission referred ACTA to the European Court of Justice for a ruling on whether it is compatible with the EU's fundamental rights and freedoms. The Court's opinion is not expected until 2013 at the earliest. ACTA will be considered by European Parliament committees during most of 2012.
The treaty's proponents argue that the treaty is permissive rather than prescriptive. It allows countries to hold third-party intermediaries liable for copyright infringement, set a low threshold for criminal sanctions, and increase enforcement powers. In a detailed analysis of ACTA, Canadian intellectual property scholar Michael Geist argued, however, that, "Experience with other treaties indicates that flexible, permissive language is gradually transformed into mandatory, best-practice language." Geist also argues that ACTA will override carefully negotiated safeguards built into the 1994 TRIPS agreement and change the anti-circumvention rules enshrined in current WIPO treaties.
ORG believes ACTA will undermine our rights to privacy and freedom of expression
ACTA conflates the issue of counterfeiting physical goods such as medicines with copying and file-sharing. It sets a very low threshold for criminal sanctions, requires Internet intermediaries such as ISPs to behave as private police for online content, and fails to provide robust and adequate safeguards for fundamental freedoms. The treaty will also undermine existing, more transparent and inclusive intellectual property bodies such as the World Trade Organisation and the World Intellectual Property Organisation.
And yet, ACTA is likely to be ineffective in its stated purpose due to the exclusion from discussions of developing countries, which are often the source of counterfeit goods.
As an attempt to bypass national legislative deliberation, ACTA sets as a precedent a corrosive and dangerous lack of transparency that ratification would only legitimise. By their nature, international treaties are stiff and inflexible instruments that override national legislation. In ratifying ACTA, the EU would effectively cede control over all intellectual property policy in all 27 member states. The European Parliament would, for example, no longer be able to amend its own Intellectual Property Rights Enforcement Directive. It would bind member states to provisions that, when enshrined in legislation at the national level with similar provisions, such as the Digital Economy Act, are controversial and under review.
The Open Rights Group supports an open, evidence-based reappraisal of intellectual property policy, something that has been sorely lacking in the formulation of both ACTA and the UK's Digital Economy Act 2010. The UK Intellectual Property Office, writing in 2011, admitted the lack of "reliable, credible, and comparable data on the scope and scale of IP crime". ACTA imposes constraints on fundamental values such as freedom of expression and the right to privacy, and turns Internet intermediaries such as Internet service providers into the private police force. ORG calls upon the European Parliament to reject ACTA.
- Electronic Frontier Foundation's backgrounder on ACTA in the US
- European Commission
- Wikipedia article