ACTA

ACTA - Anti-Counterfeiting Trade Agreement

Introduction

The Anti-Counterfeiting Trade Agreement, or "ACTA", is a controversial proposal for a trade agreement currently being negotiated by a number of nations.  ACTA addresses standards of enforcement of intellectual property rights.  The content being proposed for ACTA has the potential to impact civil liberties and divert public resources towards the enforcement of private rights.  The negotiation process itself is opaque.  CIPPIC is calling for healthy public debate about both ACTA's content and the appropriateness of an international trade agreement as the venue for these policy decisions.

F.A.Q.

Contents

What is ACTA?

ACTA is the Anti-Counterfeiting Trade Agreement. It is a new multi-lateral trade agreement that is being negotiated between the governments of several developed countries including Canada that seeks to establish heightened international standards for enforcement of intellectual property rights. ACTA has many critics worried, due to both procedural concerns about how the agreement is being negotiated, and substantive concerns about what it is going to require.

Who is involved in the negotiations?

The governments of Australia, Canada, the European Union, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea, Switzerland, the United Arab Emirates and the United States are involved in the first stage of negotiations. Other countries, including most of the developing world, will be invited join later. Negotiations are taking place in close consultation with rights holders such as members of the entertainment, software, apparel and pharmaceutical industries. Citizens and public interest groups have been largely left out.

When are ACTA negotiations taking place?

ACTA is currently in the first stage of negotiations, in which the substance of the agreement will be agreed upon. This will consist of several rounds of negotiations in Geneva, Switzerland. Informal pre-negotiations took place in late 2007 and early 2008, while the first round of formal negotiations took place June 3-4, 2008; subsequent rounds are expected every 6-8 weeks, with the second round beginning July 17. Participants have indicated that a second stage of negotiations may occur after the shape of the trade agreement has been established. Additional countries will be encouraged to sign on, but no major changes to the Agreement will be introduced at that point.

While this type of international agreement usually takes several years to negotiate, there is evidence that ACTA negotiations will be carried out at a more hurried pace: a U.S. trade official was quoted as saying "The United States will strive to complete the agreement before the end of 2008." This obviously did not come to pass; however, the negotiating parties continue to place urgency on completion of the agreement.  In their Joint Statement of the parties following the Korea round of negotiations, the negotiating parties "reaffirmed their commitment to continue their work with the aim of concluding the agreement as soon as possible in 2010." This schedule worries many observers: the rapid pace of negotiations reduces the opportunity for open and thoughtful debate ?especially since many important stakeholders have been effectively excluded.

What is the purpose of ACTA?

Negotiators state that ACTA is an attempt to address two issues: (1) counterfeiting of goods, including audio and video recordings, software, books, apparel, pharmaceuticals, food products, and consumer goods such as electronics, and (2) ?piracy'. Counterfeit pharmaceuticals, food and some other products can pose serious risks to consumers, since they may not meet the same safety standards as the genuine articles. Counterfeit music CDs, DVD movies and software are a less serious risk, but still often do not meet the quality standards of most consumers.

What evidence is being relied on to justify ACTA?

While counterfeiting is a problem, it is difficult to accurately measure the costs to society, and a wide range of estimates can be found. ?Pro-IP rights' groups (like the ones who have been lobbying for the sorts of reforms in ACTA) have often been accused of preferentially reporting statistics that support their views; these numbers sometimes turn out to be dubious. For example, a 2005 report by the RCMP estimated the cost of intellectual property crime to the Canadian economy at $10-30 billion, but this figure was later discredited as originating from industry sources. A 2007 report by the Ontario Chamber of Commerce estimating the cost of counterfeiting in Canada at $22.5 billion was condemned for using poor statistical techniques. Prominent claims by Hollywood that Canada is a haven for film piracy have also been debunked.

How does ACTA relate to other international agreements?
ACTA is being negotiated as a stand-alone trade agreement, separate from the usual forums for creating international agreements such as the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO) and the World Customs Organization (WCO). Other agreements already exist under these bodies which set out international norms for trade relating to intellectual property. In particular, ACTA seems to duplicate many of the functions of several recent international agreements, including the WIPO Internet Treaties, the WTO Trade-Related Aspects of Intellectual Property (TRIPS) agreement, and the Johannesburg Convention on customs cooperation. It is not clear why an additional agreement is necessary on top of these treaties. Some critics of ACTA claim that it is an attempt by the participating countries to impose stricter rules than could ever be agreed upon in multi-lateral forums, in which developing countries have a greater say. Others make a similar argument that civil society groups have a presence in WIPO, WTO and WCO negotiations, whereas in ACTA, civil society is excluded and only business interests have a voice.

What do we know about the content of ACTA?

Very little. No drafts of the ACTA text have been made available. The government agencies negotiating ACTA ?including the Canadian Department of Foreign Affairs and International Trade ?have been very secretive about the agreement. Critics worry that the secretive nature of the negotiations undermines responsible governance and silences the voices of developing countries and citizens' groups.

However, the basic framework of ACTA can be pieced together from various insider statements, government "fact sheets" and leaked documents. ACTA consists of a three-pronged approach to intellectual property: a common legal framework, standardized enforcement practices, and norms for international cooperation.

What is the legal framework that ACTA will require?

ACTA will focus on extending the legal liabilities for copyright and trademark infringement in both breadth and depth. This includes:

  • Criminal sanctions for intellectual property offences, both for commercial infringement and for significant willful acts of infringement not for financial gain.
  • Authority for the state to charge individuals with infringement without a complaint by the rights holder.
  • Authority to seize and destroy infringing goods, and the equipment used to make them.
  • Requiring Internet Service Providers to filter infringing content and cooperate in tracking down illegal downloaders.
  • New powers for border enforcement, including the authority to seize and destroy infringing materials at the border, and to disclose cases of importation of infringing materials to rights holders.
  • Requiring countries to adopt laws against circumvention of technological protection measures, similar to those proposed in Bill C-61 and required by the WIPO Internet Treaties (which Canada has not ratified).

The overall theme is the criminalization of intellectual property infringement. From a legal perspective, this is a change from the traditional view that these sorts of activities are generally only civil or regulatory wrongs, and only rise to the level of a criminal activity warranting law enforcement action in cases of commercial infringement in which the accused has the intent to defraud others. Critics worry that the proposed legal framework is too broad, and goes beyond preventing harmful counterfeiting and threatens many legitimate activities. The negative effects of overly restrictive intellectual property laws are well documented. Some measures required by ACTA may chill freedom of speech and discourage innovation. Many benign everyday activities may be made illegal. For example, some have voiced concerns that:

  • Downloading copyrighted content from the Internet could get you banned by your ISP, sued, or charged with a criminal offence.
  • Copying your CD or DVD collection to your computer could make you criminally liable.
  • Your laptop or iPod could be searched at the border and checked for infringing files, and could even be seized.
  • If ACTA mandates filtering of ISP traffic, legal content such as mash-ups and parodies may be removed from internet communications.

The burdens would be even greater for organizations such as libraries, schools and universities, and internet service providers.

What enforcement practices will ACTA provide for?

A major focus of ACTA will be requiring participants to engage in active enforcement of copyright and trademark laws.  This includes specialized training of law enforcement, as well as "education" campaigns about the importance of intellectual property and the consequences of infringement. Emphasis is placed on border enforcement.

Critics worry that ACTA's proposals will raise is that the costs of enforcement will outweigh the benefits. Police and border services have limited budgets as it is, and directing public resources toward enforcing private intellectual property rights will necessarily mean sacrificing efforts directed towards other areas, such as more traditional crimes. Furthermore, the benefits of these expenditures will mostly accrue to private rights holders, rather than benefiting society as a whole. If Disney, Sony, Time Warner and the like want stricter enforcement of their intellectual property rights, they should have to pay for it, not push the cost on taxpayers. Critics also worry about the nature of the "education" programs envisioned by ACTA participants.  In the past, rights-holder "education" campaigns have amounted to little more than propaganda.

What sort of international cooperation will ACTA provide for?

The international cooperation provisions in ACTA will likely focus on cooperation between law enforcement. This would include sharing of best practices, cooperative training and sharing of information. The main concern here is the impact on civil rights of having information about you shared with foreign governments. This may, for example, mean that people could be stopped at a border crossing if you have been investigated for copyright infringement at home. Critics are also concerned about border agents searching laptops and personal entertainment devices such as iPods for "infringing" content.

How has Canada approached ACTA?

Canada is known to be taking part in ACTA negotiations, but the government has provided few details about their involvement. The Department of Foreign Affairs and International Trade (DFAIT) has issued a fact sheet and FAQ on ACTA, but it does not provide much information. In early 2008, DFAIT solicited submissions from the public regarding ACTA, but it is questionable how useful such a consultation is when so few details of the agreement are known to the public.

How have other countries approached ACTA?

While some countries have been very secretive about their involvement in ACTA, others have been somewhat more open. Australia engaged in a public consultation process in late 2007, before negotiations commenced. More recently, New Zealand announced that it would hold public consultations after a text of the agreement was available and before the New Zealand government made a decision on it, in addition to soliciting early submissions.

Resources

Government ACTA Resources

Other ACTA Resources

Counterfeiting Resources

This page last updated: July 30, 2008