Anti-Counterfeiting Trade Agreement

The Anti-Counterfeiting Trade Agreement (ACTA) is a global effort to improve and create international standards for the enforcement of Intellectual Property Rights laws against large scale infringements. The primary components of ACTA include (1) international cooperation (2) enforcement practices and (3) legal framework to enforce IPR. On October 1, 2011, United States, Australia, Canada, Korea, Japan, New Zealand, Morocco, and Singapore signed ACTA during a ceremony in Tokyo, Japan. On January 26, 2012, the members of the EU signed the agreement despite street protests in France and Poland and international opposition.

Background

In 2006, Japan and the United States introduced the idea of a new multilateral treaty to combat counterfeiting and piracy which was called the Anti-Counterfeiting Trade Agreement (ACTA) to bring together governments worldwide that are willing to improve international standards to enforce the protection of Intellectual Property Rights. The European Union was mandated to lead the negotiations, which started in June, 2008. Any member of the World Trade Organization (WTO) supporting ACTA should be able to sign the agreement after May, 2013. ACTA participants conducted a series of negotiations discussing the content of the agreement. On April 16, 2010, a unanimous agreement was developed after the 8th round of negotiation which was held in Wellington, New Zealand. The text of the negotiated ACTA was reviewed by legal experts of each negotiating country in December, 2010 in a meeting held in Sysdney Australia. On November 15, 2010, the negotiating parties announced that they were able to finalize the content of ACTA. The final text of the agreement is available here

Structure

ACTA is built under the structure of existing international rules on Intellectual Property, notably the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, a comprehensive multilateral agreement established to protect all forms of intellectual property rights in 1995. The legal framework in enforcing IPR protection under the agreements respects civil liberties and the rights of consumers and it has provisions on border measures, civil and criminal enforcement as well as Intellectual Property Rights Enforcement within Digital Environment.

Supporters

The supporters of ACTA emphasize the importance of an international treaty for protecting intellectual property rights and the chance to regain lost revenue by stopping the exchange of counterfeit and pirated goods. Supporters of ACTA are major brand owners, copyright holders, movie studios, pharmaceutical companies, and include:

• Copyright Alliance
• Emergency Committee for American Trade
• International Intellectual Property Alliance
• International Trademark Association
• Motion Picture Association of America
• National Association of Manufacturers
• Recording Industry Association of America
• Software & Information Industry Association
• U.S. Chamber of Commerce
• United States Council for International Business
• U.S. House Judiciary Committee Chairman Lamar Smith (R-Texas)
• Glaxo Smith Kline
• Pfizer
• Sanofi-Aventis
• Monsanto Company
• Time Warner
• Sony
• Verizon
• The Walt Disney Company,
• News Corporation
• Viacom

Opposition

ACTA has also received criticism and opposition from many quarters, particularly companies within the Internet industry, legal academics, digital rights groups such as the Electronic Frontier Foundation (EFF), Public Knowledge, the Pirate Party, Reporters Without Borders, Oxfam, Sakharov Laureates, Hacktivist Group Anynymous and Members of the European Parliament including EU parliamentary Rapporteur for ACTA, Kader Arif.

EFF Says ACTA is Undemocratic

Critics of ACTA argue that the treaty is undemocratic. According to the EFF, ACTA was "negotiated in secret and it bypassed checks and balances of existing international IP norm-setting bodies, without any meaningful input from national parliaments, policymakers, or their citizens." In addition, the EFF said that the worst part of the treaty is the creation of an "ACTA Committee" which will serve as a new global institution with a mandate to implement the treaty without legal obligation to be transparent in its proceedings. EFF pointed out that ACTA is undemocratic in substance and in process.

Law Professors Say ACTA is Unconstitutional

Thirty Professors including US Constitution Scholars Jack Goldsmith and Lawrence Lessig said that the Obama administration's decision to sign ACTA without submitting the final text of the treaty to the Senate or to the Congress for approval is unconstitutional. According to them, "The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. According to the professors, Article 1 Section 8 of the Constitution clearly states that the power is given to the congress on matters related to foreign commerce and intellectual property. According to them, the administration needs to comply with the constitution and should make it clear that "the United States does not consider itself to be bound until the agreement is consented to by Congress or domestic legislation implementing the agreement is passed" to avoid binding the U.S. to an international treaty that is domestically unconstitutional.

Citizens Against ACTA

An online petition was launched by citizens and residents of New Zealand asking their government to withdraw from the treaty. According to the petitioners, ACTA is "offensive, negotiated by a small club of like minded countries" without a democratic debate and it bypassed parliaments and international organizations and it is a "major threat to freedom of expression online and creates legal uncertainty for Internet companies."

Members of the European Parliament Oppose ACTA

Four Members of the European Parliament (MEP) namely Stavros Lambrinidis (Greek, Socialist), Zuzana Roithova (Czech, EPP), Alexander Alvaro (Germany, Liberal) and Francoise Castex (France, Socialist) expressed their opposition to ACTA and asked all ACTA documents to be disclosed to the public. According to them the treaty lacks transparency and it should not weaken freedom of expression and privacy. They expressed concern over the introduction of new criminal sanctions, and the possibility that ACTA might hinder the global access to legal, affordable and safe medicines.

EU Rapporteur for ACTA Resigns in Protest

On January 27, 2012, Kader Arif, EU parliamentary rapporteur resigned from his position in protest of the treaty. He described the process of the international agreement as "problematic." According to him, "This agreement might have major consequences on citizens’ lives, and still, everything is being done to prevent the European Parliament from having its say in this matter. That is why today, as I release this report for which I was in charge, I want to send a strong signal and alert the public opinion about this unacceptable situation. I will not take part in this masquerade."

Sakharov Laureates MEPs to Reject ACTA

The winners of the Sakharov Prize for Freedom of Thought expressed their concern over ACTA and sent a letter of Appeal to the MEPs asking them to protect the freedom of expression and information by rejecting the treaty. According to them, "The Anti-Counterfeiting Trade Agreement (ACTA) was negotiated in secrecy and is now being forced on elected representatives as a done deal to which they are asked to assent. This approach represents a dangerous bypassing of the democratic process." The Sakharov Prize for Freedom of Thought is an award established by the European Parliament in 1988 to recognize the contributions of individuals and organizations in promoting human rights and fundamental freedoms. It was named after Russian physicist Andrei Dmitrievich Sakharov who won the Nobel Prize in 1975 for his efforts in increasing the awareness on the dangers of nuclear arms.

European Parliament

While the act was abandoned in the U.S. Congress, the fight continued in the EU Parliament in July, 2012 when the EFF and 50 other organizations again reiterated their opposition.

Electronic Frontier Foundation