The Anti-Counterfeiting Trade Agreement (ACTA) is a little-know treaty that, to date, has been signed by over 30 countries worldwide. This post highlights some key points that should be known about this instrument, which potentially will have far reaching consequences across the globe.

Over the last few months, the Stop Online Piracy Act  (SOPA) and the PROTECT Intellectual Property Act (PIPA), which were being debated in the US legislature have been receiving international attention, and as reported in Going dark: why you might be having difficulty accessing some websites, numerous websites “went dark” on 18 January to protest both of those bills. Since then, the processes to enact those two pieces of legislation have ground to a halt, but there is another instrument, which could be even more pervasive, but has had comparatively little visibility and scrutiny.

In October 2007, the US, Japan, Switzerland, and the European Union began negotiating a new Intellectual Property (IP) treaty called the Anti-Counterfeiting Trade Act (ACTA). Additional countries joined the negotiations, and since October 2011, 30 countries, plus the EU, have become signatories to this agreement (Figure 1).

Figure 1: Word cloud of countries that are signatories to ACTA as at January 2012 (Source: ICT Pulse)

If by chance, you were not aware of this new pluri-lateral agreement, you can be excused: ACTA was not given much publicity during its preparation. Hence here are five key points you ought to know about ACTA.

1. ACTA is not limited to physical goods and trademarks

When one thinks of “counterfeit”, it is normally in relation to physical products – money, pharmaceuticals, luxury brands, etc. However, as drafted, ACTA contemplates “the general principles on civil and criminal enforcement of intellectual property are also applicable to infringements occurring on the Internet”, and that “intermediaries whose services are used by third parties to infringe an intellectual property right” (source: A. Metzger). Hence online copyright infringement issues are within ACTA’s scope, similar to SOPA and PIPA, but there is now a network of countries that have established a framework for co-operation and enforcement. (Could this be the reason why the Megaupload shutdown was so decisive and effective?)

2. ACTA was not prepared through a transparent process

Typically, multi-country treaties take several years to develop and to varying degrees, the citizenry of the participating countries can contribute to the process through in-country consultations. This approach was not used for ACTA. Furthermore, leading international agencies on IP, such as the World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO), were not been involved in ACTA’s formulation. The public only became aware of the agreement in mid-2008, through Wikileaks, which had gained access to some of the early discussion papers.

3.  All of the participating territories have been developed countries

Although it might be obvious from our word cloud, no developing countries has been party to ACTA. Those invited to sign the agreement have been G20 members and other major economies. According to the Electronic Frontier Foundation (EFF), based on documents published by the Office of the US Trade Representative in 2008, the US has been eager to establish agreements that have IP enforcement obligations over and above that agreed to under the 1994 WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs). Moreover, the EFF is of the view that

… [e]ven 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…

4.  A number of countries appear to have some difficulty with ACTA

As discussed earlier, the shroud of secrecy surrounding the preparation and negotiation of ACTA has been a grave concern to some countries, and also to special interest groups. For example, Mexico, Poland and Switzerland, one of the original parties to the negotiations, have not signed ACTA. Additionally, the Netherlands and Brazil have criticised the process used to formulate the agreement, and also the fact that the negotiation text still has not been made publicly available (source: EFF).

5. ACTA may be more detrimental than SOPA

As detailed in our post, What could be the impact of SOPA in the Caribbean?, a number of criticisms were levelled at SOPA (and PIPA) by Internet companies and industry experts. They ranged from concern about conflicts with existing legislation and the implications to Internet security, to the impact on innovation and business development. To varying degrees, those criticisms have also been made against ACTA, along with concerns in the EU about its impact on freedom of expression and the right to communication privacy. However, the International Business World has argued that ACTA is far more damaging to Internet freedom than SOPA in the following ways:

  • scope – as a multi-country treaty, it is establishing formal channels and an international framework through which to coordinate and tackle a broad range of IP crimes
  • transparency and visibility – as discussed earlier, ACTA was prepared and finalised without much public scrutiny, and is only now gaining some visibility as more countries adopt it
  • ease of approval – unlike national legislation that would be subject to wide debate and an iterative process, ACTA, as a international treatyand prepared in the manner it was, has not necessarily been subject to the usual checks and balances
  • level of support – the G8 and a number of other industrialised countries have been vocal in their support of ACTA, and have been eager to have the agreement completed. Within 10 months of the agreement being finalised in April 2011, 30 countries (and counting) have already acceded to it.

Parting remarks

In summary, the fact that ACTA has received such wide support among many of the major world economies means it is only a matter of time before we, in the Caribbean and other developing countries worldwide, begin to feel its impact. More importantly, however, is the likelihood that ACTA’s provisions will become the minimum requirement for all future IP/counterfeiting agreements, although it was covertly prepared and has been subject to considerable suspicion and distrust.

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