The Intellectual Property Office (IPO) has confirmed that no text of the Anti-Counterfeiting Trade Agreement (ACTA) has been shared with MPs or the Culture, Media and Sport Select Committee.1 Parliament has not been involved in the negotiating process either.
No democratic institution in the UK has seen the ACTA draft. There has been no democratic scrutiny of the text, Parliament has been shut out of this process. This draft agreement lacks legitimacy before it is even agreed.
Despite its name a lot of ACTA deals with copyright enforcement. Despite assurances from Governments that ACTA will not require any changes in national law there are a number of provisions that go beyond current UK and international treaties.
Provisions in ACTA would allow far larger damages awarded to the rightsholder than currently provided under UK law. These damages would excessively punish the infringer. It is not the intention of the law to punish infringers beyond the damage that was actually done (s97(1) CDPA).2
ACTA in Art 2.7 (Ex-Officio Action) would also establish a 'IP border police'. It goes beyond the provision in existing international agreements such as TRIPs which provides that prima facie evidence is required to seize goods (Art 58). It also limits the time the border authority can seize goods for to ten days (Art 55). ACTA has none of these safeguards.
There are also concerns with regard to privacy. Peter Hustinx, the European Data Protection Supervisor has questioned if ACTA complies with EU privacy laws.
These are all very serious criticisms on issues that affect all citizens and we cannot merely have unelected Government officials deciding on them. In a democracy Parliament has to be able to debate, scrutinise and decide on matters that have an effect on citizens. And that is why MPs need to see and debate the ACTA text.
Negotiators meet in Tokyo this Thursday and it is likely that they will agree a deal. There has been massive pressure from the US to finalise ACTA as soon as possible because they don't want it to clash with the mid-term elections in November in any way.
So on top of the secrecy, this is a rushed decision with no chance for our elected representatives to influence the outcome.
In a great victory for transparency, a majority of MEPs in the European Parliament last week signed a Written Declaration calling for fundamental rights to be respected in ACTA.
MEPs have have also put pressure on the European Commission to release the final text so that they can properly debate and vote on it. But MEPs can only approve or reject ACTA not amend it.
So the message to MEPs is once the final text is released is clear. Do not agree to a treaty that you have not been able to scrutinise properly. Do not agree to something you could not influence in any way. Vote against ACTA.
1 The only public release of the ACTA text was published in April.
2 s97(1) Copyright, Designs and Patents Act 1988. Also Art 45 TRIPs refers to expenses of the rightsholders being payed whereas ACTA text speaks of "pre-established" damages.