Negotiated ACTA Text Is Released

by Glen Shapiro, LawAndTax-News.com, New York

11 October 2010

Although there are a small number of outstanding issues, the text of the Anti-Counterfeiting Trade Agreement (ACTA) has now been publicly released following the conclusion of the final round of negotiations in Tokyo, Japan, on October 2.

Participants in the negotiations, who together represent more than 50% of world trade, have included Australia, Canada, the European Union (EU) represented by the European Commission, the EU Presidency and EU member states, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States.

The United States Trade Representative, Ron Kirk, said that, after three years and ten rounds of negotiations, the ACTA parties had decided the time was right to conclude their discussions.

The ACTA parties are said to have aimed at the establishment of an international framework for effectively combating the global infringement of intellectual property rights (IPR), in particular the proliferation of counterfeiting and piracy, for example the piracy of music, and films and the counterfeiting of clothing brands.

However, while the parties to the agreement are to ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of IPR, the agreement has had to recognize the parties’ existing obligations under the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), and take into account differences in its participants’ respective legal systems and practices.

It is stressed that the ACTA is not intended to create any obligation on a party to apply measures where IPR are not protected under existing national laws, and that the parties recognize the need to ensure that measures and procedures to enforce IPR do not themselves become barriers to legitimate trade.

The measures adopted, it is said, should also balance the rights and interests of all stakeholders and, in the digital environment, of the relevant copyright and trademark holders, internet service providers (ISPs) and users. With some countries known to advocate more stringent restrictions, those concerned with internet and digital rights had been concerned at how far the ACTA would go, for example, in requiring ISPs to police and be liable for infringements taking place on their networks.

However, while the agreement gives countries the right to order an ISP “to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement to provide information about someone who is infringing copyrighted works”, it also requires that procedures "shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with each party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy."

Kirk concluded that: “This text reflects tremendous progress in the fight against counterfeiting and piracy. The leadership shown by our ACTA partners in reaching solutions on tough issues should send a strong message to pirates and counterfeiters that they have no place in the channels of legitimate trade. We must now work quickly with our partners to finalize the results achieved in the Tokyo. This work represents a significant victory for those who care about protecting and enforcing intellectual property rights.”

But, according to the US Computer and Communications Industry Association (CCIA), the ACTA text, while an improvement on earlier drafts, contains many "flaws."

"ACTA, which would expand international intellectual property enforcement, has been updated in positive ways, but it seeks to implement US digital copyright laws in nations without copyright limitations and exceptions," the CCIA stated. "This means US companies could face charges in other countries for practices that are entirely legal in the United States. Given continuing uncertainty about the scope of the agreement, however, the technology industries will likely be reserving final judgment."

The CCIA is concerned that high legal costs could result in US companies having to withdraw from some foreign markets.

“CCIA has always been an advocate for trade as it typically opens foreign markets to US goods and services," said CCIA President & CEO Ed Black. "But instead of helping US companies expand overseas markets, ACTA may have just the opposite effect. This executive agreement could have a negative impact on our economy if US companies can no longer afford to fight legal battles in foreign courts for activities permitted under US law."

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