Anti-Counterfeiting Trade Agreement

[ By Morgane Martin, Intern | 29 Jun 2011 ]

The Anti-Counterfeiting Trade Agreement (ACTA) is a proposal for an International agreement on Intellectual Property Rights (IPR) enforcement, which official purpose is to fight the increase of counterfeiting in International trade and the piracy of copyrighted data.

Secretly settled up by the United States and Japan, it was then negotiated with Canada, the European Union, Switzerland, Australia, Mexico, Morocco, New Zealand, the Republic of Korea and Singapore.

Although the idea was originally developed by Japan and the United States in 2006, the first agreement draft only appeared in October 2010.

During those four years the member States were negotiating the issue without publishing anything. Event the European Parliament has been the victim of this lack of information.

To quote Swiss association 3D : ACTA's negotiations are "the emblem of a maximalist vision of implementation of intellectual property rights and an offensive strategy to achieve it, contrary to public interest foundations” of these same intellectual property rights.

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The relationship between ACTA and the World Trade Organisation (WTO) is quite obscure : although ACTA seems to be relying on the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), it is not part of it. ACTA would also create a new legal framework independent from the World Intellectual Property Organisation (WIPO) and therefore the United Nations. Thus, despite the fact that ACTA was finally unveiled to light, it is still surrounded by a certain mystery.

The situation is not clear either about ACTA and the European Union (EU).

In May 2011, the Foundation for a Free Information Infrastructure (FFII) urged the European Parliament (EP) to seek an opinion of the European Court of Justice on the compatibility of ACTA with the EU Treaties.

She also asked the European Commission and the EP for an assessment of the consequences of ACTA on “access to medicine, diffusion of green technologies needed to fight climate change, fundamental rights, innovation, small and medium sized companies and a fair balance of interests”, which would be particularly threatened by the agreement.

More information in FFII Press Release :

A group of Intellectual Property (IP) Law academic experts has recently concluded that ACTA is not fully compatible with the European Union’s treaties and that it goes beyond the international law aspects. In a public statement, they mentioned that such criminal sanctions "have not yet been harmonized by the EU law", or that border measures have been extended to simple with the right brand.

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ACTA’s main idea is a strong and widespread repression through criminal sanctions for each part faced with counterfeiting goods, cf. articles 23 and 27. Thus, northern multinational companies that support this project criminalize some 90% of the population in emerging markets and undermines everybody’s online liberties.

ACTA creates an imbalance between rights and obligations of IPR holders.

In addition, ACTA’s agreement does not contain any safeguard clause against potential abuse or flexibilities in the use of unlicensed goods protected by intellectual property rights.

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According to the United Nations Special Reporter Frank La Rue, ACTA by establishing new criminal penalties, "would force Internet companies to police their networks or services and to monitor the activities of their users" and therefore seek to make technical intermediaries responsible for the activities of users of the net.

Frank La Rue declares : "Freedom of expression is more important than copyright and must be protected at all costs".

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Moreover, according to the Hargreaves review (*) this text will have the effect of aggravating the problems caused by "patent thickets" in the digital world, the FFII supports this analysis and points out that the crackdown under ATCA against infringement of patents will make things worse.

(*) Ian Richard Hargreaves is professor of journalism at Cardiff University, author of the report "Digital Opportunity: a review of intellectual property and growth" published in May 2011.

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To conclude, ACTA is an agreement proposal born from a very undemocratic process of negotiation which goal is to develop an extremely repressive system to fight counterfeiting, system in tension with fundamental rights, EU law as well as net neutrality.

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