On Saturday October 1st, eight countries (the United States, Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea) signed the Anti-Counterfeiting Trade Agreement (ACTA) in Tokyo, Japan. Three of the participating countries (the European Union, Mexico, and Switzerland) have not yet signed the treaty, but have issued a joint statement affirming their intentions to sign it “as soon as practicable.” ACTA will remain open for signature until May 2013. While the treaty’s title might suggest that it deals only with counterfeit physical goods such as medicines, it is in fact far broader in scope. ACTA contains new potential obligations for Internet intermediaries, requiring them to police the Internet and their users, which in turn pose significant concerns for citizens’ privacy, freedom of expression, and fair use rights.
EFF was one of the first groups to raise the alarm about ACTA, when negotiations were first announced by the U.S. Trade Ambassador, the European Union, and Japan in October of 2007. From the beginning, we were deeply concerned about the lack of transparency in the negotiating process. The U.S. Trade Representative (USTR) drafted a confidentiality agreement, signed by all parties, which purported to prohibit negotiating countries from disclosing any information about ACTA. Nevertheless, several versions of the trade agreement text and accompanying negotiating documents were leaked to the public, which allowed legal scholars from the participating countries to effectively analyze the impact of ACTA on many different countries with differing legal regimes and regulatory policies. The combination of scholarly analysis and pressure from civil society has helped to rein in the treaty. Many of the most concerning specific provisions that were present in preliminary versions of ACTA, such as requirements for ISPs to adopt Three Strikes Internet disconnection policies, were eliminated from the "final" version released by the USTR in May 2011.
Controversy over ACTA in the United States is far from over. Senator Ron Wyden has sent a letter to President Obama asking why the administration believes that ACTA does not require formal approval from Congress. Wyden goes on to point out that legal scholars have repeatedly raised concerns that ACTA is not consistent with US law and if the USTR ratifies ACTA without Congressional consent, it may be circumventing Congress' Constitutional authority to regulate international commerce. The letter goes on to say:
The executive branch lacks Constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congresses' authority, absent Congressional approval.
Meanwhile, Brazil's parliament is debating proposed "Anti-ACTA" legislation, with provisions for the protection of net neutrality and the privacy and personal data of individuals, in direct opposition to language in ACTA which gives copyright holders carte blanche to demand trafic logs from ISPs to identify alleged offenders.
Unfortunately, rightholders' efforts to use multi-lateral treaties to enforce their intellectual property rights across the world may not end with ACTA. A leaked version of the IP chapter of the Trans Pacific Partnership Agreement (TPP), which is currently being negotiated by nine countries (U.S., Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, and Brunei) indicates that U.S. negotiators are pushing for the adoption of copyright measures far more restrictive than ACTA. Like ACTA, TPP is being negotiated rapidly and with little transparency. Negotiating countries hope to complete the agreement by November 2011. If you are in the U.S., now is the time to contact your lawmakers and demand transparency around TPP.
