{"id":3059,"date":"2012-02-08T08:51:24","date_gmt":"2012-02-08T13:51:24","guid":{"rendered":"http:\/\/www.ict-pulse.com\/?p=3059"},"modified":"2012-12-12T06:08:53","modified_gmt":"2012-12-12T11:08:53","slug":"5-things-you-need-to-know-about-acta","status":"publish","type":"post","link":"https:\/\/ict-pulse.com\/2012\/02\/5-things-you-need-to-know-about-acta\/","title":{"rendered":"5 things you need to know about ACTA"},"content":{"rendered":"

The Anti-Counterfeiting Trade Agreement (ACTA) is a little-know treaty that, to date,\u00a0has been signed by over 30 countries worldwide. This post highlights some key points that should be known about this instrument, which\u00a0potentially will have far reaching consequences across the globe.<\/em><\/span><\/p>\n

Over the last few months, the Stop Online Piracy Act\u00a0 (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<\/a><\/em><\/strong>, numerous websites \u201cwent dark\u201d 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\u00a0has had comparatively little visibility and scrutiny.<\/p>\n

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).<\/p>\n

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Figure 1: Word cloud of countries that are signatories to ACTA as at January 2012 (Source: ICT Pulse)<\/p><\/div>\n

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.<\/p>\n

1. ACTA is not limited to physical goods and trademarks<\/h3>\n

When one thinks of \u201ccounterfeit\u201d, it is normally in relation to physical products \u2013 money, pharmaceuticals, luxury brands, etc. However, as drafted, ACTA contemplates\u00a0\u201cthe general principles on civil and criminal enforcement of intellectual property<\/em> are also applicable to infringements occurring on the Internet<\/em>\u201d, and that \u201c<\/em>intermediaries whose services are used by third parties to infringe an intellectual property right\u201d<\/em> (source: A. Metzger<\/a>). Hence online copyright infringement issues are within ACTA\u2019s 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<\/a><\/em><\/strong>\u00a0was so decisive and effective?)<\/p>\n

2.\u00a0ACTA was not\u00a0prepared through a transparent process<\/h3>\n

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\u2019s formulation. The public only became aware of the agreement in mid-2008, through Wikileaks<\/a>, which had gained access to\u00a0some\u00a0of the early discussion papers.<\/p>\n

3. \u00a0All of the participating territories have been developed countries<\/h3>\n

Although it might be obvious from our word cloud,\u00a0no 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<\/a>\u00a0(EFF), based on documents published by the Office of the US Trade Representative <\/a>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)<\/a>. Moreover, the EFF is of the view<\/a> that<\/p>\n

\u2026 [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…<\/p><\/blockquote>\n

4.\u00a0 A number of countries appear to have some difficulty with ACTA<\/h3>\n

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<\/a>).<\/p>\n

5. ACTA may be more detrimental than SOPA<\/strong><\/h3>\n

As detailed in our post, What could be the impact of SOPA in the Caribbean?<\/a><\/em><\/strong>, a number of criticisms were levelled at SOPA\u00a0(and PIPA)\u00a0by 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<\/a> has argued that ACTA is far more damaging to Internet freedom than SOPA in the following ways:<\/p>\n