- Act Now
- Open Internet
- Promoting Creativity
- Open & Accessible Technology
The Anti-Counterfeiting Trade Agreement (ACTA) is an international agreement that was signed by Australia, Canada, Japan, Korea, Morocco, New Zealand, Singapore, and the United States. It was negotiated behind closed doors from 2006-2010.
Public Knowledge’s Position
This international agreement may sound uncontroversial, but, in fact, raises many questions and poses a significant threat to the public interest. Everyone can agree that it is important to internationally enforce laws against large-scale commercial counterfeiting and piracy—protecting against things like trademark-infringing knock-offs and dangerous counterfeit drugs. However, there are several fundamental problems with the process and content of the ACTA that raise significant concerns.
Process concerns include:
- Lack of transparency. The Agreement is a multilateral intellectual property treaty that has been styled as a trade agreement in order to justify the secrecy of its negotiations, but there is absolutely no reason why the negotiations should be taking place behind closed doors.
- Lack of democratic process. This treaty would implement sweeping legal changes around the world, bypassing existing international intellectual property organizations, like the World Intellectual Property Organization and the World Trade Organization, and without approval by the U.S. Congress. This means that the treaty could potentially lead to several controversial changes to U.S. law without any democratic legislative process.
- Lack of public input. Who does have a say in the negotiations? Plenty of unelected officials and an Industry Trade Advisory Committee, made up of entirely corporate interest groups like the RIAA and Verizon. Groups like Public Knowledge have had to fight tooth and nail to even gain access to the text, much less talk freely about it. Despite the fact that the Agreement has huge implications for the public, few substantive steps have been taken to inform, engage, or even consider the public interest.
The content of the treaty is deeply concerning in several ways. The treaty goes beyond its intended purpose and extends its reach beyond pure enforcement into the realm of real legal reform. Here are just a few of the problems that would have real consequences for the consumer:
- Its language is vague and key terms, like “counterfeit” and “piracy” are never clearly defined. This lack of definitions means that there is no clear standard to differentiate between large-scale commercial infringement and ordinary, unintentional acts of infringement. Plus, by over-using and mis-using the term “counterfeit”, it puts generic drugs at risk of being considered illegal and even confiscated at borders, threatening global access to affordable medicine.
- It would implement a regime of statutory damages that are both disproportionate to the crime and absent any balancing limitations. The Agreement proposes the use of over-zealous and disproportionate statutory damages that would prevent future domestic reform by Congress because the provisions would be tied to an international agreement. It also contains no safeguards or exceptions in cases of innocent infringement.
- Criminal penalties for “significant willful” copyright infringements that have no “direct or indirect motivation of financial gain” may have grave implications for individual users. This is particularly concerning given that the Agreement doesn’t include any limitations on copyright and trademark enforcement, like the provision of fair use, that are an essential part of U.S. law.
- It would permit signatory countries to search electronic devices at border controls to search for infringing material. This is an opt-out policy. The text provides for the possibility of an exception from border searches for personal baggage, but a country is not required to have this exception—it is merely permitted to have one.
The greatest concern over ACTA is that it purports to ratchet up protections for IP rights holders without even the barest measures to preserve either the balance in IP law or due process rights of citizens. Without going through any pre-existing avenues of legal change—whether domestic or international—this treaty may be considered an act of “policy laundering.” That is, the use of an international treaty to justify the passage of controversial legislation within one’s own country.
The USTR claimed that the treaty would “color within the lines of U.S. law,” but the text and the negotiations process itself, which continues to proceed with the highest level of secrecy, raise concerns that cannot be ignored.
What you can do to help
- Subscribe to our email list for updates on hot issues and events.
- Donate to Public Knowledge to help us keep our doors open.
- Give policy makers a piece of your mind: act now.
For more information