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May 09, 2012

Briefing on the Anti-Counterfeiting Trade Agreement

Anti-Counterfeiting Trade Agreement

Open Rights Group. May 2012.

In this note, we briefly set out our concerns about the Anti-Counterfeiting Trade Agreement. 

We believe that ACTA pays insufficient attention to the interests of citizens and consumers and in doing so undermines the Internet as a tool for the promotion of freedom of expression and innovation.

For example, it promotes and incentivises the private 'policing' of online content through broad thresholds for its criminal measures. It exacerbates such problems by failing to provide adequate and robust safeguards for fundamental freedoms. ACTA may not be directly or explicitly aimed at our 'everyday use' of the Internet. But this is a target it will likely hit. Its provisions amount to a framework that encourages signatories to give away power over what happens online far too cheaply.

Similar problems afflict current EU laws on IP enforcement. With these laws under review, it is unwise to draft and sign an Agreement that binds Member States more closely to them.

For these reasons Open Rights Group believes that the European Parliament should reject the Anti-Counterfeiting Trade Agreement, and begin a more open discussion about the future of IP and copyright in the digital age. 


ACTA has limited democratic credibility

ACTA has developed without the opportunity for citizens or their elected representatives to have a meaningful influence over its content. That amounts to a denial of citizens' right to have a stake in the decisions that affect them. Furthermore, as with other forums for policy making related to intellectual property (For our blog for more on a current example from the UK's policy making), civil society and other voices were largely excluded from having meaningful input.

In addition. there is little in the way of accompanying analysis or evidence, or efforts to set out that the measures are necessary, appropriate, good public policy. It fails to properly distinguish between types of Intellectual Property in attempting to deal with copyright, trademarks and patents with one broad instrument.

We are delighted that ACTA is finally being subjected to the light of democratic scrutiny, both through debate in the European Parliament and through widespread engagement by the public across Europe. We welcome this opportunity to share our views on the text of the Agreement.

ACTA as a threat to freedom of expression

ACTA sets the threshold for criminal measures, in Article 23.1, at acts of 'commercial scale'. The text further defines this as 'at least' acts carried out as commercial activities for direct or indirect economic or commercial advantage. In addition, Article 23.4 stipulates Parties shall 'ensure that criminal liability is available for aiding and abetting is available under its law'.

ACTA also promotes voluntary agreements involving intermediaries such as Internet Service Providers, meaning power over what we see and do online is effectively given away to businesses – potentially outside the rule of law.

Added together this would create incentives for intermediaries such as Internet Service Providers to actively police content. There would be little incentive to apply care and to respect due process. We are concerned about how easily this power over information online could be used mistakenly or inappropriately.

The problematic threshold for criminal measures mentioned above will also create legal uncertainty and disincentives to innovate, as companies fear unsustainable liability for their users' behaviour.

Internet intermediaries play a critical role in providing a platform for great economic and social innovation, through which people express themselves culturally and politically. So we place great store in the limits, defined in law, on the extent to which these intermediaries can be held liable for what happens on their networks or services. An impact on freedom of expression and innovation is inevitable when those boundaries are redrawn. ACTA is far too clumsy, at best, in this respect.

ACTA as a threat to privacy

Article 27.4 sets out that Parties may make provision for orders to online service providers to 'disclose expeditiously to a rights holder information sufficient to identify a subscriber whose account was allegedly used for infringement'. The concern is that this facilitates, if not encourages, the kind of action taken recently in the UK by 'ACS:Law' http://www.bbc.co.uk/news/technology-16616803 in which citizens were coerced into paying money following (frequently false) allegations of infringement following this kind of subscriber information disclosure. (See for example paragraphs 12 to 21 of Executive Director Jim Killock's Witness Statement from the Open Rights Group submissions to the Judicial Review of the Digital Economy Act in early 2011.)

ACTA's undemocratic institutional legacy

ACTA would create an "ACTA Committee": a new international and unaccountable body made up of representatives of signatories who could amend ACTA. That takes IP policy further away from the people it affects and from democratic mechanisms of accountability, and needlessly bypasses established forums for the formulation of international IP policies.

Time for an evidence-based review of IP policy

ACTA is being debated at time when a fundamental reassessment of IP policies in the digital age is needed and, in some cases, underway. A number of recent reports have questioned the evidence and analysis underlying existing IP policy, including reports from the US Government Accountability Office, the UK's Intellectual Property Office and the Social Sciences Research Council.

(See for example 'The economics of copyright and digitisation: A report on the literature and the need for further research', Christian Handke, SABIP, 2010, p 65.; 'Intellectual Property: Observations on efforts to quantify the economic effects of counterfeit and pirated goods', United States Government Accountability Office, April 12, 2010, available at ;'Media Piracy in Emerging Economies', Joe Karaganis (ed), SSRC books 2011)

For example, the UK Intellectual Property Office's revised IP Crime Strategy, published last year, states that “reliable, credible and comparable data on the scope and scale of IP crime and its impact on businesses, society and the economy is needed to make better decisions on how best to tackle it. There is a considerable distance to go for the UK, or any other country for that matter, in achieving this.”

There is no evidence-based analysis to demonstrate that the provisions found in ACTA and other existing IP laws are the most appropriate for creators, the creative industries or society and the economy more broadly.

Beyond ACTA, we support an open, evidence-based reappraisal of IP policy. There needs to be a clearer evidence-based analysis driving policy to ensure that we take full advantage of the opportunities for social and economic innovation that new technology affords.


For more information contact Peter Bradwell, peter@openrightsgroup.org