| Anti-Counterfeiting Trade Agreement | |
|---|---|
| Type | Plurilateral agreement |
| Drafted | April 20, 2010 (public draft released) |
| Parties | Unclear, officially as of 6th Round of Negotiation: Australia, Canada, the European Union, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and United States |
The Anti-Counterfeiting Trade Agreement (ACTA) is a proposed plurilateral agreement for establishing international standards on intellectual property rights enforcement.[1] ACTA would establish a new international legal framework that countries can join on a voluntary basis[2] and would create its own governing body outside existing international institutions such as the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO) or the United Nations.[3][4] Negotiating countries have described it as a response "to the increase in global trade of counterfeit goods and pirated copyright protected works."[2] The scope of ACTA is broad, including counterfeit goods, generic medicines and what is termed "piracy over the Internet", ie copyright infringement using the internet.[5]
After a series of draft text leaks in 2008, 2009 and 2010 the negotiating parties published the official version of the current draft on 20 April 2010.[6] The idea to create a plurilateral agreement on counterfeiting was developed by Japan and the United States in 2006.[7] In October 2007, the USA, the European Commission, Switzerland, and Japan first announced that they would negotiate ACTA. Since then the following countries joined the negotiations: Australia, Canada, Jordan, Mexico, Morocco, New Zealand, Republic of Korea, Singapore, and United Arab Emirates.
ACTA would establish a new international legal framework that countries can join on a voluntary basis[2] and would create its own governing body outside existing international institutions such as the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO) or the United Nations.[3][4] With regards to the reason for not pursuing ACTA through the G8, WTO, WIPO or other formal existing structures the European Commission explains that a free-standing agreement provides the most flexibility "to pursue this project among interested countries", while stating that "the membership and priorities of those organizations (G8, WTO, and WIPO) simply are not the most conducive to this kind of path breaking project."[8]
An official Summary of Key Elements Under Discussion published November 2009 states that "ACTA aims to build on existing international rules in the area of intellectual property, in particular on the TRIPS Agreement, and is intended to address a number of enforcement issues where participants have identified that an international legal framework does not exist or needs to be strengthened."[9] According to the European Commission, the goal of ACTA is to establish an international framework that improves the enforcement of existing intellectual property right laws. The Commission states that ACTA is to create improved international standards for actions against large-scale infringements of intellectual property. To this end ACTA will have three primary components: "international cooperation"; "enforcement practices"; and "legal framework for enforcement of intellectual property rights". The "ultimate objective" of ACTA is that large emerging economies, "where intellectual property rights enforcement could be improved, such as China, Russia or Brazil, will sign up to the global pact".[10]
A Factsheet published by the Office of the United States Trade Representative (USTR) in the 2008 Special 301 Report states that the goal of ACTA is to create a new standard of intellectual property enforcement beyond the existing standards in the TRIPs Agreement and to increase international cooperation, including the sharing of information between signatory countries' law enforcement agencies.[11] According to New Zealand ACTA aims to facilitate a "strong and modern legal framework so that law enforcement agencies, the judiciary, and private citizens have the most up-to-date tools necessary to effectively bring counterfeiters and pirates to justice." Areas for possible ACTA provisions include: criminal enforcement, border measures, civil enforcement, optical disc piracy, and Internet distribution and information technology.[12]
At the 8th round of negotiations, 12–16 April 2010 in Wellington, New Zealand, it was agreed to release the official current draft text, which was published on April 20, 2010. As a draft the text that is still subject to negotiation, and the published draft text includes alternative wording and suggestions in brackets. The published draft text does not indicate the position of individual countries.[13]
Chapter two of the draft agreement is the largest single chapter. The draft has the following chapters:
Negotiations for the ACTA treaty are not part of any international body.[2] According to the United States Trade Representative agency (USTR), preliminary talks about ACTA took place throughout 2006 and 2007 between United States, Canada, the European Commission, Japan and Switzerland.[5] In October 23, 2007 the United States, the European Community, Switzerland and Japan simultaneously announced that they would negotiate ACTA.[14]
The idea to create a plurilateral agreement on counterfeiting was developed by Japan and the United States in 2006.[15] The first official round of negotiations took place in Geneva during 3 and 4 June 2008; at that time, at least the following countries had joined the negotiations: Australia,[16] the European Union, Jordan, Mexico, Morocco, New Zealand, Republic of Korea, Singapore and United Arab Emirates.[17]
The second round took place in Washington, DC, from 29 to 31 July 2008.[18]
The third round was in Tokyo, during 8 and 9 October 2008.[19]
The fourth round of negotiations took place in Paris from 15 to 18 December 2008.[20]
The 5th round of the ACTA negotiations was hosted by the Kingdom of Morocco in Rabat on July 16 and 17 2009. Participants in the negotiations included Australia, Canada, the European Union (represented by the European Commission, the EU Presidency (Sweden) and EU Member States), Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the USA.[21]
The discussions at the meeting focused on international cooperation, enforcement practices and institutional issues. Transparency was also discussed, including providing information to stakeholders and the interested public. Participants agreed to release draft agendas before all subsequent negotiation rounds.[21]
The 6th round of the ACTA negotiations was hosted by the Republic of Korea in Seoul on November 4 to 6, 2009. Participants in these negotiations included Australia, Canada, the European Union, Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the United States of America. The discussions in this round of negotiations focused on enforcement in the digital environment and criminal enforcement.[22]
The 7th round of negotiations took place on 26–29 January 2010 in Guadalajara, Mexico. Participants were the same as the 6th round.[23]
The 8th round of negotiations took place from 12–16 April 2010 in Wellington, New Zealand. Topics on the agenda were border measures, enforcement procedures in the digital environment, criminal enforcement, civil enforcement, and transparency. At the meeting it was agreed to release the official current draft text, which was published on April 20, 2010.[24]
The 9th round of negotiations is scheduled on the week of 7 June 2010, before the TRIPs Council and should take place in Geneva.[23]
The negotiations for the ACTA treaty were conducted behind closed doors until a number series of leaks. A document leaked to the public in 2008 includes a provision to force Internet Service Providers (ISPs) to provide information about suspected copyright infringers without a warrant, which would be a direct violation of acticle 11.[25] A March 2010 leak included the proposed text for this provision.[26]
On May 22nd 2008, a discussion paper about the proposed agreement was uploaded to Wikileaks.[27]
In a confidential draft Canada proposed the creation of an international organization for ACTA oversight. The proposed name is ACTA Oversight Council and its functions would include:
Although the treaty's title suggests that the agreement only covers counterfeit physical goods (such as medicines), the proposed treaty has a much broader scope, including "piracy over the Internet".[5] In an ACTA fact sheet published in November 2008 the European Commission stated that "There is, at this stage, no agreed text."[29] A leaked document entitled Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement suggests that the following provisions will be included in ACTA: new legal regimes to "encourage ISPs to cooperate with right holders in the removal of infringing materials", criminal measures and increased border search powers.[11]
In reaction to the leaks, the European Commission issued a statement in November 2008, stating:
"The negotiations are still ongoing. This means that there is no agreement yet, and that, at the time of writing this fact sheet, there is not even a draft text on which negotiating parties converge. A number of "texts", wrongly presented as draft ACTA agreements have been circulated on the web. At a preliminary stage of the discussions about the idea of a future ACTA, some of the negotiating parties have submitted concept papers, to present their initial views of the project to other partners. Some of these concept papers have been circulated on the net or commented in the press and presented as "draft ACTA texts or negotiating guidelines", which they are not."[29]
Details published in February 2009 indicate that ACTA has six main chapters. Most discussion to date is focused on the "Enforcement of Intellectual Property Rights" chapter, which has four sub chapters:[5]
The leaked document includes a provision to force Internet Service Providers (ISPs) to provide information about suspected copyright infringers without a warrant, something which many feel should not be lawful, making it easier for the record industry to sue music file sharers and for officials to shut down non-commercial BitTorrent websites such as The Pirate Bay.[25]
On March 23rd 2010, the entire "January 18th 2010 consolidated text" of sections 2.1 and 2.4 (Civil Enforcement, and Special Measures Related To Technological Enforcement Means And The Internet) along with the demands of each negotiator.[30][31] This was immediately called the "biggest ever" ACTA leak.[32]
Potential border searches are covered by the "Border Measures" proposal of ACTA. As of February 2009 and according to University of Ottawa law professor Michael Geist there is significant disagreement among countries on this topic: "Some countries are seeking the minimum rules, the removal of certain clauses, and a specific provision to put to rest fears of iPod searching customs officials by excluding personal baggage that contains goods of a non-commercial nature. The U.S. is pushing for broad provisions that cover import, export, and in-transit shipments."[33]
Newspaper reports advise the proposed agreement would empower security officials at airports and other international borders to conduct random ex officio searches of laptops, MP3 players, and cellular phones for illegally downloaded or "ripped" music and movies. Travellers with infringing content would be subject to a fine and may have their devices confiscated or destroyed.[3][34]
Some countries already conduct border searches of electronic devices without probable cause. In July 2008, the United States Department of Homeland Security disclosed that its border search policies allow U.S. Customs and Border Protection agents to conduct random searches of electronic devices for "information concerning terrorism, narcotics smuggling, and other national security matters; alien admissibility; contraband including child pornography, monetary instruments, and information in violation of copyright or trademark laws; and evidence of embargo violations or other import or export control laws."[35][36] US Senator Russell Feingold called the policies "truly alarming" and proposed to introduce legislation to require reasonable suspicion of illegality and to prohibit racial profiling.[35] The Ninth Circuit Court of Appeals has previously upheld the constitutionality of laptop searches without reasonable suspicion at border crossings.[35]
An ACTA fact sheet updated in November 2008, published by the European Commission states:
"ACTA is not designed to negatively affect consumers: the EU legislation (2003 Customs Regulation) has a de minimis clause that exempts travellers from checks if the infringing goods are not part of large scale traffic. EU customs, frequently confronted with traffics of drugs, weapons or people, do neither have the time nor the legal basis to look for a couple of pirated songs on an i-Pod music player or laptop computer, and there is no intention to change this."[29]
Some industry groups composed of traditional large IP-based corporations support the agreement, and were invited to give input and suggestions during the creation of ACTA. These groups include the International Intellectual Property Alliance[37] (which includes the BSA, MPAA, and RIAA)[38] and Pharmaceutical Research and Manufacturers of America.[39]
The European Union has proposed language in the ACTA negotiations to require criminal penalties for "inciting, aiding and abetting" certain offenses, including "at least in cases of willful trademark counterfeiting and copyright or related rights piracy on a commercial scale." [40]
The European Commission identifies ACTA as an attempt to enforce intellectual property rights and states that countries involved in the negotiations see intellectual property rights as "a key instrument for their development and innovation policies". It argues:
"The proliferation of intellectual property rights (IPR) infringements poses an ever-increasing threat to the sustainable development of the world economy. It is a problem with serious economic and social consequences. Today, we face a number of new challenges: the increase of dangerous counterfeit goods (pharmaceuticals, food and drink, cosmetics or toys, car parts); the speed and ease of digital reproduction; the growing importance of the Internet as a means of distribution; and the sophistication and resources of international counterfeiters. All these factors have made the problem more pervasive and harder to tackle."[1]
Regarding the question why this agreement is not pursued through the G8, WTO, WIPO or other formal existing structures the European Commission explained:
The EU considers that the approach of a free-standing agreement gives us the most flexibility to pursue this project among interested countries. We fully support the important work of the G8, WTO, and WIPO, all of which touch on IPR enforcement. The membership and priorities of those organizations simply are not the most conducive to this kind of path breaking project.
— European Commission, [41]
With a draft Report from 26 August 2008 the European Commission tried to get a mandate from the European Parliament for the negotiation of ACTA.[42] The document will be discussed and likely amended within the INTA Committee of the European Parliament. Eva Lichtenberger prepared a Draft Opinion[43] that heavily criticises this paper within the JURI-committee. On 18 December 2008 the European Parliament adopted the resolution from the Greens with 309 against 232 Votes.[clarification needed][citation needed] On 10 March 2010, the European Parliament adopted a resolution[44] criticising the ACTA with 663 in favor and 13 against, arguing that "in order to respect fundamental rights, such as the right to freedom of expression and the right to privacy" certain changes in the ACTA content and the process should be made.[45]
Shortly after, the Council of the European Union also started to work on a Draft for a Resolution dealing with ACTA.[46] On 25 September 2008 the council adopted a pro-ACTA resolution.[47]
Published in July 2008 paragraph 17 of the G8 Leaders' Communiqué on the World Economy (G8 Hokkaido Toyako Summit) states under the heading "Protection of Intellectual Property Rights (IPR)" that:
"Effective promotion and protection of IPR are critical to the development of creative products, technologies and economies. We will advance existing anti-counterfeiting and piracy initiatives through, inter alia, promoting information exchange systems amongst our authorities, as well as developing non-binding Standards to be Employed by Customs for Uniform Rights Enforcement (SECURE) at the World Customs Organization. We encourage the acceleration of negotiations to establish a new international legal framework, the Anti-Counterfeiting Trade Agreement (ACTA), and seek to complete the negotiation by the end of this year. We will promote practical cooperation between our countries to develop tools to combat new techniques in counterfeiting and piracy and spread best practices. We reaffirm our commitment on government use of software in full compliance with the relevant international agreements and call on other countries to follow our commitment."[2]
While negotiations are secret, a number of corporations are part of advisory committees of the USTR and have access to classified documents.[48][49] These include Abbott Laboratories, Association of American Publishers, CropLife America, DuPont, eBay, Entertainment Software Association, FMC Corporation, General Motors Corporation, Generic Pharmaceutical Association, IBM Corporation, Independent Film & Television Alliance, Intel Corporation, Intellectual Property Owners Association, Johnson & Johnson, Merck & Co, Monsanto Company, Motion Picture Association of America, Oracle Corporation, Pfizer, Recording Industry Association of America, Sun Microsystems, The Dow Chemical Company, The Gorlin Group, The Procter & Gamble Company, Time Warner, and Verizon Communications.
The Electronic Frontier Foundation opposes ACTA, calling for more public spotlight on the proposed treaty.[50] Since May 2008 discussion papers and other documents relating to the negotiation of ACTA have been uploaded to Wikileaks,[27] and newspaper reports about the secret negotiations swiftly followed.[3][34][51]
In June 2008 Canadian academic Michael Geist writing for Copyright News argued that "Government Should Lift Veil on ACTA Secrecy" noting before documents leaked on the internet ACTA was shrouded in secrecy. Coverage of the documents by the Toronto Star "sparked widespread opposition as Canadians worry about the prospect of a trade deal that could lead to invasive searches of personal computers and increased surveillance of online activities." Geist argues that public disclosure of the draft ACTA treaty "might put an end to fears about iPod searching border guards" and that it "could focus attention on other key concerns including greater Internet service provider filtering of content, heightened liability for websites that link to allegedly infringing content, and diminished privacy for Internet users." Geist also argues that greater transparency would lead to a more inclusive process, highlighting that the ACTA negotiations have excluded both civil society groups as well as developing countries. Geist reports that "reports suggest that trade negotiators have been required to sign non-disclosure agreements for fear of word of the treaty's provisions leaking to the public." He argues that there is a need for "cooperation from all stakeholders to battle counterfeiting concerns" and that "an effective strategy requires broader participation and regular mechanisms for feedback".[52]
In November 2008 the European Commission responded to these allegations as follows:
"It is alleged that the negotiations are undertaken under a veil of secrecy. This is not correct. For reasons of efficiency, it is only natural that intergovernmental negotiations dealing with issues that have an economic impact, do not take place in public and that negotiators are bound by a certain level of discretion. However, there has never been any intention to hide the fact that negotiations took place, or to conceal the ultimate objectives of the negotiations, the positions taken in European Commission Trade 5/6 the negotiations or even details on when and where these negotiations are taking place. The EU and other partners (US, Japan, Canada, etc.) announced their intention to start negotiations of ACTA on 23 October 2007, in well publicised press releases. Since then we have talked about ACTA on dozens of occasions, including at the European Parliament (INTA committee meetings), and in numerous well attended seminars. Commission organised a stakeholders' consultation meeting on 23 June in Brussels, open to all – industry and citizens and attended by more than 100 participants. US, Australia, Canada, New Zealand and other ACTA partners did the same."[1][citation needed]
In New Zealand InternetNZ responded to the lack of transparency in negotiations by holding an open public event to critique the known and likely content of ACTA proposals, enable people to connect and discuss the issues, and to develop an agreed statement on ACTA. PublicACTA was held on Saturday, 10 April 2010, two days ahead of Round 8 of the ACTA negotiations on 12–16 April in Wellington. Michael Geist and Kim Weatherall were keynote speakers at the event. The Wellington Declaration[53] was developed at the event by over 100 participants, and was published the following day along with a petition for its endorsement. By 12pm NZ time on Tuesday 13 April, 6,645 signatures had been received. These were attached to the Wellington Declaration and given to the NZ Government. The NZ negotiators delivered the Declaration to the negotiators from other countries that afternoon.
On April 16 the negotiators issued a joint statement[54] that they had reached unanimous agreement that the time was now right for making available to the public the consolidated text coming out of this round. They intend to release this on Wednesday 21 April. Individual negotiating positions of each participant will not be released.
Both the Obama administration and the Bush administration had rejected requests for the text of ACTA, with the White House even indicating that disclosure would do 'damage to the national security.'"[55]
An open letter signed by many organizations, including Consumers International, EDRi (27 European civil rights and privacy NGOs), the Free Software Foundation (FSF), the Electronic Frontier Foundation (EFF), ASIC (French trade association for web 2.0 companies), the Free Knowledge Institute (FKI) states that "the current draft of ACTA would profoundly restrict the fundamental rights and freedoms of European citizens, most notably the freedom of expression and communication privacy."[56]
The Free Software Foundation (FSF) has published "Speak out against ACTA", stating that the ACTA threatens free software by creating a culture "in which the freedom that is required to produce free software is seen as dangerous and threatening rather than creative, innovative, and exciting."[57] ACTA would also require that existing ISP no longer host free software that can access copyrighted media; this would substantially affect many sites that offer free software or host software projects such as SourceForge. Specifically the FSF argues that ACTA will make it more difficult and expensive to distribute free software via file sharing and P2P technologies like BitTorrent, which are currently used to distribute large amounts of free software. The FSF also argues that ACTA will make it harder for users of free operating systems to play non-free media because DRM protected media would not be legally playable with free software.[57]
It has been argued that the main thrust of ACTA is to provide safe harbor for service providers so that they may not hesitate to provide information about infringers; this may be used, for instance, to quickly identify and stop infringers once their identities are confirmed by their providers. Similarly, it provides for criminalization of copyright infringement, granting law enforcement the powers to perform criminal investigation, arrests and pursue criminal citations or prosecution of suspects who may have infringed on copyright. It also allows criminal investigations and invasive searches to be performed against individuals for whom there is no probable cause, and in that regard weakens the presumption of innocence and allows what would in the past have been considered unlawful searches.
Since ACTA is an international treaty, it is an example of policy laundering used to establish and implement legal changes. Policy laundering allows legal provisions—usually administered through public legislation and subject to judiciary oversight—to be pushed through via closed negotiations among members of the executive bodies of the signatories. Once ratified, companies belonging to non-members may be forced to follow the ACTA requirements since they will fall out of the safe harbor protections. Also, the use of trade incentives and the like to persuade other nations to adopt treaties is a standard approach in international relationships. Additional signatories would have to accept ACTA's terms without much scope for negotiation.[58]
The Free Software Foundation argues that ACTA will create a culture of surveillance and suspicion.[57] Aaron Shaw argues that "ACTA would create unduly harsh legal standards that do not reflect contemporary principles of democratic government, free market exchange, or civil liberties. Even though the precise terms of ACTA remain undecided, the negotiants' preliminary documents reveal many troubling aspects of the proposed agreement" such as removing "legal safeguards that protect Internet Service Providers from liability for the actions of their subscribers" in effect giving ISPs no option but to comply with privacy invasions. Shaw further says that "[ACTA] would also facilitate privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process".[59]
In September 2008 a number of interest groups urged parties to the ACTA negotiations to disclose the language of the evolving agreement. In an open letter the groups argued that: "Because the text of the treaty and relevant discussion documents remain secret, the public has no way of assessing whether and to what extent these and related concerns are merited." The interest groups included: the Consumers Union, the Electronic Frontier Foundation, Essential Action, IP Justice, Knowledge Ecology International, Public Knowledge, Global Trade Watch, the US Public Interest Research Group, IP Left (Korea), the Canadian Library Association, the Consumers Union of Japan, the National Consumer Council (UK) and the Doctors without Borders' Campaign for Essential Medicines.[60] The Electronic Frontier Foundation (EFF) and Public Knowledge have filed a FOIA request which was denied.[2][11]
A coalition of concerned organisations submitted to the responsible Australian Government department, the Department of Foreign Affairs and Trade.[61]
The submission agreed that reducing counterfeiting is important where it endangers consumer health or safety, or constitutes commercial scale infringement. However, the coalition urged that pursuit of that goal should not threaten legitimate commercial, social, innovative and creative activities, the rights of consumers or the free flow of information. The coalition noted the current proposed treaty raised serious concerns with respect to transparency, increased customs search powers, increased penalties for IP infringement, and lack of due process.
The coalition consisted of:
The University of Ottawa's Canadian Internet Policy and Public Interest Clinic filed an access to information request but received only a document stating the title of the agreement, with everything else blacked out.[3]
In November 2008, the Foundation for a Free Information Infrastructure (FFII) requested secret Anti-Counterfeiting Trade Agreement (ACTA) documents from the EU Council, specifically naming 12 documents to be published.[62] The request was denied by the EU council, stating that "disclosure of this information could impede the proper conduct of the negotiations, would weaken the position of the European Union in these negotiations and might affect relations with the third parties concerned".[63] FFII stated that although the case could be won in the European court of justice, the legal process could take many years (citing an earlier case on transparency of EU legislation that took 6 years). Consequently, FFII suggests going via parliaments of Europe to force Council to publish the texts.[citation needed]
In March 2009, the European Parliament passed a resolution demanding greater transparency in public affairs, which among other things called on the European Commission to make public all documents relating to the negotiations.[64]
In August 2009 a coalition[65] of NGOs and individuals formed to request more transparency in ACTA negotiations. At briefings held by the Ministry of Economic Development (MED) and the Ministry of Foreign Affairs and Trade (MFAT) on 16 December 2009, representatives from the coalition organisations supported the New Zealand negotiators stated desire to call for more transparency. In December 2009 two New Zealand members of Parliament, Clare Curran (Labour) and Peter Dunne (United Future) also publicly questioned the need for secrecy.[66][67]
In March 2010 TechLiberty, an NZ digital civil rights organisation, received a response to its Official Information Act request on ACTA.[68] It was given letters from MED and MFAT plus the May 2008 cabinet paper[69] in which the NZ government agreed to participate in ACTA. Portions of the cabinet paper, and answers to questions posed by TechLiberty, were withheld including the venue for the April 2010 ACTA negotiations, the cabinet discussion paper on participation in ACTA, and all copies of draft negotiation texts, and all documents expressing NZ's negotiating position. This information was withheld under Official Information Act provisions allowing for withholding of information where it would prejudice the international relations of the Government of New Zealand, where it would affect the privacy of natural persons, where it was required to maintain the effective conduct of public affairs, and where withholding information was required to enable the government to carry on negotiations (including commercial and industrial negotiations).
MED and MFAT have recently held a number of briefings on ACTA, including in December 2009, and from 22 - 29 March. They stated at these briefings, and in the media[70] that the NZ position is to champion greater transparency in the negotiations.
Knowledge Ecology International also filed a Freedom of Information Act (FOIA) request in the United States but had their entire request denied. The United State Trade Representative's FOIA office stated the request was withheld for being material "properly classified in the interest of national security."[71] However, a recent leak has shown that the Obama administration intends to start an undisclosed Internet chapter.[vague][citation needed] US Senators Bernie Sanders (I-VT) and Sherrod Brown (D-OH) penned a letter on November 23, 2009 asking the United States Trade Representative to make the text of the ACTA public.[72]