January 29, 2012
With SOPA and PIPA shelved, ACTA was somewhat ignored. Don’t know what ACTA is? Don’t worry: you weren’t meant to. Here’s what you need to know.
If you thought SOPA and PIPA were bad, ACTA is in an entirely different league of its own. ACTA may not order a mass culling of kittens, or declare war on China, but it will have a massive impact on trade, copyright, and intellectual property rights.
[War Is Crime note: You can download and read the final version of the ACTA text here.]
SOPA and PIPA overshadowed much of ACTA’s progress over the past few months. Since the ‘Internet killing’ bills were shelved from Congress, more focus has been drawn towards Europe, as many of the European Union member states are to sign the controversial international legislation. Plus, if you haven’t heard of it already, it’s partly because you weren’t meant to hear about it.
But since its conception, much of the ACTA text has changed significantly, and many of the controversial elements of the agreement have been watered down a great deal, or scrapped altogether. While conducted mostly behind closed doors, leaks have transformed the route that ACTA has taken.
As one Forbes commentator said: “Like vampires, these laws seem to die off once they see the light of day”. And, as TechDirt notably highlights, “much of the information and fear-mongering about ACTA is extremely dated.”
What is ACTA?
ACTA stands for the “Anti-Counterfeiting Trade Agreement”. First announced in late 2007, the U.S., the EU, Switzerland, and Japan said they would negotiate a new intellectual property enforcement agreement to counter the illegal counterfeit goods trade across borders.
The U.S. signed it last October, along with other major economies like Australia, Canada, South Korea and Japan. European member states still have to wait for the European Parliament to agree.
What does ACTA cover?
Initially it was thought that ACTA would enable governments to effectively work together in tandem across borders to prevent counterfeit goods, like medicines and knock-off technology goods for example, from entering the market. The Act aims to protect the economy and end-consumers’ confidence.
But it is becoming increasingly clear that though the ACTA name uses the word “counterfeiting” in its title, it vastly focuses on the transfer of copyrighted materials online. The agreement will make it easier for law enforcement and ISPs (‘intermediaries’) to monitor consumers, and impose new criminal sanctions on those who flout copyright and patent laws.
Who is signing up to ACTA?
Many major countries on the world stage have been involved in the discussions. Australia, Canada, Japan, Jordan, South Korean, Mexico, Morocco, New Zealand, Singapore, Switzerland, the United Arab Emirates — and of course — the United States.
More recently, 20 European Union member states signed up to the agreement, including the UK and notably Poland, which saw widespread protests, bringing the issue further into the public limelight.
Is ACTA a law?
No, it is neither a law nor a treaty. ACTA is a “trade agreement”, which allows countries to work in alignment on certain matters. It is similar to SOPA/PIPA in that it will battle copyright infringement, but expand to patents, counterfeit goods and intellectual property rights.
ACTA supporters say that it will not change U.S. law, nor can it change U.S. law, because that would be unconstitutional. Because it is a “sole executive agreement”, it allows the President to sign it without additional support from the Senate, and therefore without scrutiny. Some argue that because ACTA is vague in places, it could be interpreted to require changes to U.S. law.
Who will enforce ACTA?
The agreement will create an “ACTA Committee” to make amendments to the agreement. The problem is that this committee is not accountable to anybody. It is outside the public and judicial process, and not accountable to a nation or an international body. The committee won’t even be accountable to those countries governed by the agreement, including the U.S. government and the European Commission.
As ReadWriteWeb explains: “Folks in the United States can vote out Lamar Smith and others who endorsed SOPA/PIPA, but we would have no real influence on the ACTA Committee.”
Why such an upheaval?
There are numerous reasons. ACTA’s provisions would have been as effective as SOPA and PIPA, before they were shelved. Many intrusive elements of ACTA have since been removed, thanks to the European legislators.
The remainder of the provisions, though watered down, still pose a significant impact on end Web users and ordinary consumers — while the Canadian government notes that ACTA is “not designed to be intrusive.”
There is also a broad scope of definitions; too broad, some have argued. The EDRI notes that: “ACTA provides an extremely low threshold for imposing criminal sanctions.” This means that should a person, a company, or even a government accidentally or unintentionally infringe copyright, this could be considered a criminal act. Further into this, what used to be a civil offence can now be deemed a criminal offence [PDF].
Is ACTA actually shrouded in secrecy?
Some claim that ACTA is a “secret” agreement. In fact, it has been made public for some time. But the negotiations themselves were behind closed doors. A leaked U.S. diplomatic cable, however, said that the ACTA negotiations had been “set at a higher level than is customary for non-security agreements”, leading to some criticising the build-up phase as ‘state secrecy’.
Could ISPs be liable for their customers’ illegal activity?
ISPs are currently not liable for what their customers do. ACTA proposed that ISPs would be partly if not wholly responsible for what their customers get up to, including illegal file-sharing. But these measures have since been removed. Reduced to a mere footnote in the text, countries can now do as much or as little as they like to limit ISP liability.
Will ISPs be forced to snoop on its users?
ACTA could give governments new powers to deal with “Internet distribution and information technology”. While ISPs could have been forced into blocking sites that infringe copyright — or even worse — forced into installing “mandatory network-level filtering” at ISP-level, these measures have since been removed from ACTA.
The European Union adopted an Internet freedom provision, stating that any measures taken by EU member states that affect citizen’s access to the Internet “must respect the fundamental rights and freedoms of citizens”. That taken into account, it did say that European citizens are entitled to a “fair and impartial procedure” before any Web-restricting measures can be imposed.
Could a ‘three-strikes’ rule become a universal sanction?
U.S. negotiators were intent on requiring ISPs to adopt a three-strikes rule on serial copyright infringers. France already has a three-strikes rule, which the government claimed recently to be a ‘success’.
But the European Parliament voted in 2010 to not pass ACTA if it includes a three-strikes rule; measures which are staunchly backed by the MPAA and the RIAA. It does not guarantee that the U.S. will not enact a three-strikes rule, but it means that signing European member states will not be able to.
Will DMCA takedown notices now go worldwide?
The U.S. currently has a notice-and-takedown system under the Digital Millennium Copyright Act (DMCA). If you have ever seen a ‘missing’ search result in Google, that’s what it is. It allows rights-holders to send a notification to a party infringing copyright that they are doing so, and to take it down or face court. On the whole, the system works.
But the U.S. has since climbed down from its attempts to essentially push its DMCA system on the rest of the world. Still, there is hope that the equally controversial TPP agreement (see below) could push for such changes.
“ACTA makes access to medicines more difficult”: Is this true?
One of the worries is the vague language used by the text. Generic drugs are at risk of being considered illegal, and could be confiscated at borders, making the global fight against disease far more difficult.
Corporations would in effect be able to prevent generic, non-branded medicines and drugs from reaching those who need them. Counterfeit drugs can be dangerous, cause more harm than good, and can kill. Such ‘grey market’ drugs can infringe patents belonging to pharmaceutical giants, but are far cheaper for both poorer nations and for NGO’s to buy from charitable fundraising.
Oxfam said in a statement in 2010:
“A trade agenda that limits the legitimate movement of cheap generic medicines will hit the poorest people in developing countries disproportionately hard. The interests of big drug companies can not be put ahead of the needs of two billion people around the world who do not have access to essential medicines.”
Is it possible for ACTA not to be passed in Europe?
Yes, it is possible. Because 20 of the countries that are willing to sign ACTA are member states of the European Union, ACTA will effectively have to pass along the desk of the European Parliament — expected in June.
Because not all members of the European Parliament (MEPs) are in government in their respective nations, it is likely that many will refuse to sign ACTA, leaving the U.S. and others outside the European Union in the cold. It would also strike a heavy blow to the U.S., which appears to be spearheading this agreement.
How will home file-sharers be affected?
Simply put: there will be little difference than today. If you are caught illegally file-sharing, you may face trouble in your respective country, as you would do anyway.
Because the agreement also covers piracy, individual file-sharers — including those who use peer-to-peer networks and file-sharing sites like RapidShare — were in the crosshairs. It meant that college kids downloading music or movies could have faced fines, seizure of equipment, and even custodial sentences.
But as the negotiation process went on, these measures were eventually eliminated from the final text.
How does ACTA deal with statutory damages?
‘Statutory damages’ allow rights-holders to receive compensation per work rather than compensation for losses or damages. In the U.S. for example, the basic level of damages is between $750 and $30,000 per work. This means that one college student can be fined $675,000 for downloading only 30 songs. Ultimately, it can result in extremely disproportionate fines for ordinary Web users.
Though watered down, ACTA still pushes for statutory damages. ACTA will export the U.S.’ system of damages to jurisdictions that do not have statutory damages.
U.S — check. Europe — check. Will non-signing countries be unaffected?
No. Just as the United States can lobby the Spanish government to implement SOPA-like laws by threatening to include the country on a trade sanctions list, it can also lobby other countries with smaller economies with similar sanctions.
The U.S. Trade Representative draws up an annual intellectual property “naughty list”, as described by Public Knowledge, which allows the U.S. to threaten emerging nations with trade sanctions. The U.S. can threaten — as it has done before — to enact such sanctions, forcing smaller economies in changing their laws to align with that of the United States.
How will borders and airport security be affected?
Imagine an airport experience where your mobile phone or laptop was plugged in and its contents downloaded or analysed for infringing material. The U.S. has for some time conducted such searches in the fight against terrorism.
ACTA allows such measures, but on a wider scale to include infringing material. The EU was critical of this, saying [PDF]: “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 iPod music player or laptop computer, and there is no intention to change this.”
But ACTA does allow exceptions to this, such as personal baggage. ACTA ‘permits’ this as an exception, rather than requiring one, making this an opt-out policy. The chances are the EU would opt-out, but other nations may not.
Could ISPs be forced to give rights-holders details of Internet subscribers?
It is possible. As ReadWriteWeb highlighted, ACTA will give governments a “legal support mechanism” should they themselves decide to allow rights holders to seek subscriber data from ISPs. It was noted that the agreement’s text has replaced the word “shall” with “may”, but it does give governments “an excuse to do so”.
Is ACTA all doom and gloom?
Yes, and no. Though the language used in ACTA is often vague, difficult to comprehend, and often illegible to the ordinary citizen — as is any other treaty, international agreement, or legal statute — there is some hope.
ACTA wants to protect legitimate e-commerce and freedom of speech. It notes it, saying:
“These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.”
If SOPA, PIPA was a ‘distraction’ for ACTA, what is ACTA thought to be covering?
If you thought SOPA and PIPA were bad, then ACTA is your worst nightmare. If you read this and thought that ACTA was bad, then TPP is even worse. It’s like the passing of a nuclear hot potato.
In short: TPP stands for the “Trans-Pacific Partnership”. The levels of secrecy are even more stringent than that of ACTA, according to TechDirt, with some negotiating documents being kept secret for up to four years after ratification.
The Electronic Frontier Foundation (EFF) said that TPP will “rewrite the global rules on [intellectual property] enforcement”, but. “omits the flexibilities and exceptions that protect Internet users and technology innovators.”
When is ACTA expected to come into force?
Prof. Michael Geist, a notable expert on ACTA and Internet privacy issues, notes that: “The majority of ACTA countries have signed the agreement, but it will only take effect once five countries have formally implemented and ratified it. That is not expected until at least May 2013, opening the door to stopping the agreement from taking effect.”
The European Parliament also has a heavy sway in whether ACTA goes through. It must through the European Parliament before member states’ can ratify it.