Friday 27 January 2012

What is ACTA? How Can It Affect Developing Countries?

More than 1.4 billion people in the world live below the poverty line, defined by the World Bank as 1.25 U.S. dollars per day.  People living at or below the poverty line are vulnerable to disease, starvation, and the natural elements and are deprived of medicines, knowledge, and power over the international laws and economic dispositions that affect their daily lives. However, what does this have to do with the Anti-Counterfeiting Trade Agreement (“ACTA”) —the subject of secretive negotiations by the United States, Europe, and a few close allies? ACTA is, after all, described by its advocates as a trade agreement. Little attention has been paid to its potential impact on the world’s poorest people. This article points to some of the ways in which ACTA will almost certainly threaten their interests.

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Sopa and Pipa might be on hold for the time-being, but there is a greater threat looming. It's called the Anti-Counterfeiting Trade Agreement (ACTA) and it's an international agreement that aims to establish multinational standards on intellectual property rights enforcement.

What is Acta?

ACTA is an international agreement that aims to create international standards on intellectual property rights enforcement. The title of the treaty suggests the agreement deals with counterfeit goods, such as medicines and luxury goods. However, the treaty actually has a much broader scope and will deal with tools targeting internet distribution and information technology.

It has been negotiated, mostly in secret, between various countries and the EU over the last four years. Many states have already signed up for Acta, well before the widespread web furor over Sopa. So far, Canada, Japan, Korea, Morocco, New Zealand, Singapore and the US have all signed up to Acta. The European Union, Mexico and Switzerland have supported the treaty and shown a commitment to signing it in the future. Acta was slipped through the European Council in an agriculture and fisheries meeting in December. Some of its more aggressive language has been removed from more recent iterations of the treaty, particularly concerning "disconnection of internet access". It is expected to be signed by the EU on Thursday, before the European Parliament has a chance to vote on it.


Is it really a trade agreement?

Acta has been negotiated as a trade agreement, which has allowed it certain freedoms from democratic scrutiny. Critics argue that this is copyright legislation being pushed through under the guise of a trade agreement so that it doesn't get debated as much. Unusually for a trade agreement, there are criminal sanctions.

Trade Agreements can usually be agreed in Europe by the European Commission on behalf of the EU. However, the European Commission was not allowed to negotiate over Article 23 -- the controversial part of the treaty which not only insists on criminal penalties for piracy but also for those accused of "aiding and abetting" copyright infringement -- the member states had to be represented at the table. They negotiated these new criminal sanctions behind closed doors

Acta is such an unusual beast that when the European Commission pledged to create a guide about how Acta could be ratified, it took months instead of weeks. It has been described as a "mixed agreement".

Who supports it?

Acta is supported by major copyright holders including pharmaceutical companies, movies studios and record labels. Lobbying organisations include GlaxoSmithKline, Pfizer, Sanofi-Aventis, Monsanto Company, Time Warner, Sony, Verizon, The Walt Disney Company, the Motion Picture Association of America, News Corporation, and Viacom. It looks like the European Commission supports it but the European Parliament are unanimously against it.

What are the arguments in favour of Acta?
Acta is an international treaty that aims to protect intellectual property rights across borders. Copyright holders argue that it marks a recognition of the value of intellectual property rights to an economy's global competitiveness. By clamping down on counterfeit goods, generic medicines and internet copyright infringement, it is hoped that these valuable industries will be protected and will allow companies to recoup revenues lost to counterfeiting, for example.

What are the main criticisms of Acta?

I. It is undemocratic
Acta has been largely negotiated behind closed doors, with many participating parties being forced to sign NDAs before being allowed to see Acta documents. It is very difficult to find out who wrote it and what happened during the negotiations. It is highly unusual for criminal sanctions of this scale to be negotiated without democratic process.

Members of the European Parliament haven't been consulted. It is even being negotiated outside of existing trade bodies such as the World Trade Organisation and the World Intellectual Property Organisation.

II. It blurs the lines between piracy and counterfeiting
Acta appears to refer to piracy and counterfeiting in the same breath as if they were the same thing. Piracy and counterfeiting are not the same thing. Counterfeiting generally requires the person receiving the copied goods to be deceived into thinking it is real. Jérémie Zimmermann from the French Lobbying group La Quadrature du Net, explains: "This element of language is known to us as part of the vocabulary of the 'copyright Talibans', as we call it. If you treat Chinese manufacturers who create counterfeit DVDs or medicines in the same way you treat individuals sharing not-for-profit in their homes you know that you will have problems."

"They are trying to sneak through a lot of the copyright stuff by pretending it's about counterfeiting," says the Pirate Party's Robinson.

III. It criminalises copyright infringement when there are civil sanctions already
According to the controversial Article 23, criminal penalties should be applied "in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale", although the phrase "commercial scale" is not clearly defined and specifically removes the intentionality, i.e. it doesn't matter whether a company intends to make a profit from the pirated content, it only matters whether it has the scale of a commercial operation. Criminal sanctions should also be made available for those "aiding and abetting" infringement on a commercial scale. Critics argue that this means that ISPs and data centres would potentially be liable for aiding and abetting any commercial website that features a copyright infringing piece of content. "This is the nuclear weapon against any actor on the internet," says Jérémie Zimmermann. He believes that the criminal section of Acta will be used as a weapon to ensure that ISPs cooperate with rights holders. As the Sakharov laureates warn: "In the name of copyright enforcement, the European Union and other signatories would be bound to put pressure on internet actors, compelling them to monitor and police the network."

IV. It creates a barrier to changing national law
Acta takes away from democratic governments the right to set their own copyright policy or patent policy.

How does it compare with Sopa and Pipa?

While Sopa and Pipa were designed to extend US law to foreign infringing sites, Acta writes the law internationally, and takes away power from democratic governments to tweak their own copyright law.

Acta bypasses the sovereign laws of participating nations, forcing ISP's across the globe to adopt these measures.

How could it affect developing countries?

Critics argue that Acta could hinder developing countries' ability to choose policy options that best suit their domestic priorities. It is likely that the support of major economies such as the US, Europe, Canada and Japan will put pressure on developing countries to adopt the treaty. Particular areas of concern include the crack down on generic drugs and making food patents from companies like the fearsome Monsanto, which is currently trying to patent a pig breed.

India has argued that Acta's levels of enforcement far exceed anything agreed under the WTO and says it could "short-change legal process, impede legitimate competition and shift the escalated costs of enforcing private commercial rights to governments, consumers and tax payers.

What stage are we at now?

Acta hangs on a vote from the European Parliament, which awaits the outcome of a report by the International Trade Association (INTA). The treaty will be discussed over the next few months before voted on in June. The treaty will still need to be ratified by the European Parliament and member states individually.

Extract from a WIRED Webpage article

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