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Reading about ACTA can be like joining a conversation about a soap opera that you have never watched. How can you make sense of the plot twists, and turns, the tangled sub-plots, the ever-changing cast of characters? You might wonder whether it matters, it seems as if this is the final season for ACTA. You may hope that it will all just end soon and you’ll never have to figure out what it is about.

But the consequences of ACTA are far more serious than a soap opera, for privacy, for freedom of expression and for access to medicines by the world’s poorest people. You should pay attention to ACTA. Here is a brief history of ACTA that explains why you should pay attention. This is a summary (i).

• ACTA was written in secret. Other intellectual property agreements are negotiated in public but the ACTA process was secret (ii).
• ACTA was negotiated by the trade representatives of the USA, Japan, Canada, Australia, New Zealand, South Korea, Singapore, Mexico, Morocco and the European Union. Trade representatives seem to think that their role is doing the bidding of industry lobby groups. Trade representative are not experts on constitutional law, due process, civil and criminal procedure, freedom of expression and privacy or intellectual property but that didn’t stop them from trying to make law on all those areas. Experts on those issues objected to ACTA while it was being negotiated but the trade representatives didn’t listen.
• ACTA was conceived as treaty to deal with physical goods that infringe trademarks especially cigarette smuggling. Politicians pushing for ACTA talk about the importance of innovation but don’t mention the pressure from tobacco brands.

Because of the pervasive secrecy of ACTA we don’t know when but at some point the treaty text was expanded to include all kinds of intellectual property and to talk of novel and very slippery categories “copyright piracy” and “trademark counterfeit” (iii). The agreement attempts to treats on-line infringement such as digital file sharing in the same way as smuggling fake brand name shoes.

Is ACTA necessary? There is an existing treaty that covers intellectual property law enforcement, and almost every country in the world has already agreed to that treaty. That treaty is TRIPS, the agreement on Trade Related Aspects of Intellectual Property law. TRIPS has an entire chapter on enforcement with strong enforcement provisions. I haven’t been able to find any research that shows that there is a problem with the enforcement measures required by TRIPS. The trade negotiators who push ACTA have never specified that the TRIPS enforcement provisions are problematic.

Without discussing TRIPS at all champions of ACTA claim that there is a threat of growing ‘piracy’ and ‘counterfeiting’ that threaten the ‘knowledge economy’. Therefore they say that ACTA is necessary. But this misses out important logical steps. Is there any reason to believe that this claimed growth is related to shortcomings in TRIPS? Is there any reason to believe that the provision of ACTA will make any difference?  The champions of ACTA never give those reasons, they seem to be unaware of the logical gaps in their claims.

But is there a growth in ‘piracy’ and ‘counterfeiting’? Even some opponents of ACTA begin their criticisms with an assertion that piracy and counterfeiting is growing but an examination of the studies on the problem shows that the best answer is we don’t know.

European Trade Commissioner Karel de Gucht is the chief public champion of ACTA in Europe. He and his allies often point to statistics published by the European Commission which is also the body that negotiated ACTA in 2011 as proof of a growing piracy problem. When you look carefully that the statistic they don’t show that. The European Commission statistics do show that 46% of all the articles seized were tobacco products. The statistics do show that 99% of the ‘medicines’ seized were ‘life-style medicines such as diet pills or Viagra’.  Should fake Gauloises and Viagra be a central pre-occupation of European trade policy right now? They don’t evidence an increase in infringement. (iv). A United States Government report that examined infringement  statistics used by industry and governments found that there isn’t any sound evidence of growing copyright and trademark infringement (v).  The European Commission statistics do state that 85% of the articles seized came from China, and China wasn’t invited to join the treaty negotiations.

But just because ACTA can’t achieve its stated purpose it doesn’t have consequences. Experts have warned about its effects on freedom of expression, privacy and access to medicines by the world’s poorest people (vii). One particular concern is that Internet service providers will be forced to police their users and disconnect them on if they are accused of infringement.

ACTA is not a done deal. Although the treaty has been signed by most of the countries that participated in the negotiation it hasn’t been ratified. In Europe, the European Parliament and each country has to ratify. Following widespread protests governments in Poland, Bulgaria, Netherlands, the Czech Republic, Slovakia, Germany, Lithuania, Romania and Austria stated they that would not ratify ACTA.  But ACTA isn’t  defeated either. The European Parliament could still vote in favour of ACTA this summer. The Liberals and Democrat group in the European Parliament have declared that they will vote against ACTA but conservative MEP’s could still vote for ACTA.

A clear defeat of ACTA in parliaments such as the European Parliament will demonstrate to the politicians who might support a vote in favour of ACTA or the negotiation of its successors that there is widespread opposition to the kind of enforcement theater represented by ACTA. But no is not enough, champions of ACTA have begun work in the G8 to write a replacement for ACTA should it fail.

Opponents of ACTA must call on MEP’s to pass a directive that specifically protects people against arbitrary disconnection from the Internet. La Quadrature du Net lists various ways that people are opposing ACTA in Europe.

UPDATE 1 May

ACTA could go either way in European Parliament.

UPDATE 3 May

FFII point out that the European Parliament Development committee ACTA rapporteur Mr Zahradil has produced a draft report in support of ACTA. It claims that because countries can exclude patents from the border provisions of ACTA that the international distribution of generic medicines needed by developing countries is no longer at risk. That is at best ill informed. There have already been cases in which generic medicines in transit through European ports have been wrongly seized because customs officials believed that the drugs violated trademark right.The customs officials are apparently unable to tell the difference between the pharmacological name of medicines and trademark names e.g. Amoxycillan and Amoxil (R).  ACTA would require those seizures.The deadline for amendments to the report is 8 May.

Notes

(i) I’ve written two full length law journal articles on ACTA, if you want to know more, or want to disagree vehemently then you should read them.  Collateral Damage: The Impact of ACTA and the Enforcement Agenda on the World’s Poorest People’ American University International Law Review Vol 26, No. 3 2011 and Enforcement Theater 35 Suffolk Transnat’l L. Rev. (forthcoming 2012).

(ii)The ACTA negotiating text was initially kept secret and publicly released only after it had been leaked. But even after the text had been released the negotiating process was secret. Proponents of ACTA insist that that is ok because trade negotiations are secret. But in the entire hundred and fifty year history of multi-party international intellectual property negotiations they have never been secret. ACTA is an international multi-party intellectual property treaty. ACTA broke with the way that treaties have been drafted since the creation of the UN system in the aftermath of World War 2. Multilateral agreements are negotiated through multilateral organizations that are part of the United Nations or the World Trade Organization. ACTA wasn’t negotiated through a United Nations body or the WTO, instead trade negotiators wanted to put together a ‘coalition of the willing’ so that they wouldn’t have to make compromises in the text.
(iii) Intellectual property lawyers don’t use those terms because precision counts in law. Industry lobbyists use those terms for their emotional impact on the public and policy makers. When those terms appear in international agreements then it is obvious who is writing the agreements.
(iv) The statistics do show more seizures of allegedly infringing goods, what they don’t show is how many of those seizures were actually found to be infringing, and they don’t show an increase in infringement just an increase in seizures. The statistics showing the growing number seizures were released to demonstrate the effectiveness of a Europe wide enforcement campaign. What they don’t tell is whether the increase in seizures is due to increased enforcement or an increase in infringement.
(v) United States Government Accountability Office, Report to Congressional Committees, Intellectual Property Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods, (April 2010).
(vii) I am one of those who are concerned about the impact of ACTA on developing countries, see Collateral Damage: The Impact of ACTA and the Enforcement Agenda on the World’s Poorest People’ American University International Law Review Vol 26, No. 3 2011.