Friday, 10 February 2012

The Anti-Counterfeiting Trade Agreement

I once had a work experience were I had to read through several contracts selling and assigning the right to turn a book into a TV programme and then give a presentation on who owned/did/does what. I'd only done a year at university and hadn't covered contract law or intellectual property law, so I was given a few textbooks on contract law and on copyright. As well as being one of the most interesting work experiences I ever did, it's also the only time I did anything to do with intellectual property law - while I was interested to read ACTA (PDF), I was a bit wary since I don't have the time to read into all the surrounding legislation and the debate on IPR. I do agree with this article over at The Atlantic, though: while some of the claims against ACTA might be a bit overblown, the trend in international IPR law is worryingly focused on the enforcement side, and ratcheting up enforcement standards without ever adapting to the issues brought up by our digital age. (A major debate is on whether copyrights do in fact encourage innovation and investment, or if the current laws actually detract from such innovation).

ACTA has rightly caused a huge reaction from the public, and the Party of European Socialists has come out attacking the treaty( PDF):

"The Party of European Socialists considers the Anti-Counterfeiting Trade Agreement (ACTA) to be fundamentally flawed in both content and process. There is a severe imbalance between the rights attributed to the users, service providers and rights holders.

The agreement, which is to be voted on by the European Parliament before summer 2012 and ratified by National Parliaments, is flawed in content for the following reasons; it gives undue power of oversight to internet providers; it infringes the privacy of internet users; and it will curtail developing countries access to generic medicines. It is flawed in process because of the secret manner in which the accord was agreed upon, and because of the significantly reduced time afforded to the European Parliament to scrutinise the final draft."

I haven't been able to find the positions of any other Europarties yet, but if you know them, let me know in the comments.

ACTA itself seems to raise a few questions over due process and the role of Internet Service Providers in policing IPR (which has serious implications for privacy and data protection - though it should be stressed that the actual role of ISPs would be decided by domestic legislation and ACTA does not require ISPs to take on a policing role). The EU has signed up to ACTA along with its Member States, but it has yet to be ratified and the European Parliament will make its decision this summer. The explanatory memorandum to the agreement makes clear that the Commission considers the agreement as adding noting new to current EU law on IPR, while leaving any additional obligations for judicial enforcement to be carried out by Member States as parties to the treaty. This doesn't strike me as a reason to be reassured by ACTA: if our legislation already goes further than ACTA, then where does that leave all our talk on this side of the Atlantic about being more enlightened about IPR and the internet? We still may have the safe harbour provisions that SOPA attacked, but ACTA clearly underlines that our approach is guided by a similar philosophy rather than being subjected to a serious debate about how the internet and digital media have changed the environment for IPR and how we should adapt (not to mention the price we might pay in terms of privacy and free speech to enforce these ever stricter laws).

So while not every evil assigned to ACTA finds backing in its vague provisions, it is another important step in the development of our IPR laws. We should take this opportunity to ask our MPs and MEPs to debate not just ACTA, but our approach to IPR in general. It's more than just this agreement.

You can sign the petition against ACTA here.

Also, Grahnlaw has been providing good coverage of this issue (see here, here and here for examples).

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