New ACTA Leaks: Criminal Enforcement, Institutional Issues, and International Cooperation

New ACTA leaks have emerged this week that fill in the blanks about the remainder of the still-secret treaty.  While earlier leaks provided extensive detail on the Internet and civil enforcement chapters, these latest leaks shed new light into the criminal enforcement section, the chapter on ACTA institutional issues, and international cooperation.

Criminal Enforcement

As described by KEI, the European Union has proposed language to require criminal penalties for "inciting, aiding and abetting" certain offenses, including "at least in cases of willful trademark counterfeiting and copyright or related rights piracy on a commercial scale."  Willful copyright infringement includes instances that "have no direct or indirect motivation of financial gain."

Institutional Arrangements

KEI reports that the Institutional Arrangement chapter – Chapter 5 of the ACTA text – is the second longest in the treaty.  It includes the creation of an ACTA Oversight Committee that may have the power to amend the treaty itself.   The leaked text reveals the following proposal:

The new ACTA Committee shall:

  • Supervise the implementation of ACTA
  • Consider further "elaboration" or "development" of the agreement
  • Address "disputes that may arise regarding the interpretation or application" of ACTA
  • Consider any other matter that may affect the operation of this agreement.

The Committee may:

  • Establish ad hoc or standing committees, working groups, experts groups, or task forces to carry out various activities.
  • Seek the advice of non-government persons or groups
  • make recommendations regarding the implementation of ACTA,
  • provide guidelines for implementing the agreement
  • identify and monitor techniques of piracy and counterfeiting
  • assist non-parties in assessing the benefits of accession,
  • share information on best practices
  • support international organizations
  • take other such actions as the parties may decide.

The Committee is expected to met regularly, as well as in special sessions. The EU wants the meetings to be normally held in Geneva.  ACTA "can extend invitations to governments who are candidates to join ACTA, to attend as observers."

ACTA will also come with its own secretariat.  KEI reports that:

The ACTA Secretariat may be provided by the country serving as the Chair, or be a permanent independent secretariat, possibly existing within another international body (such as UPOV within WIPO, or UNITAID within WHO). Korea wants the secretariat to be provided by the WTO. Morocco wants the secretariat connected to WIPO. 

International Cooperation

Chapter 3 of ACTA provides new mechanisms for international cooperation and information sharing.  The chapter includes provisions mandating law enforcement cooperation with respect to criminal investigation or prosecution as well as cooperation at the border.  The EU would like "particular attention devoted to the circulation of IPR infringing goods detrimental to health and safety."

It appears there is some disagreement between the EU and the US on the limits on the obligation to disclose confidential information.  The U.S. proposes the following limiting language:

The Parties understand that obligations under this Chapter and Chapter 4 [Enforcement Practices] are subject to the domestic laws, policies, resource allocation and law enforcement priorities of each Party.

The EU's proposed carve out is much more extensive:

Nothing in this Chapter and Chapter 4 shall require any Party to disclose confidential information which would be contrary to its laws, regulations, policies, legal practices and applicable international agreements and arrangements, including laws protecting investigative techniques, right of privacy or confidential information for law enforcement, or otherwise be contrary to the public interest, or would prejudice the legitimate commercial interests of particular enterprises, public or private.

The chapter also includes information sharing requirements including statistical data and national legislative and regulatory measures.  Morocco would like to establish an observatory as as a tool for collecting information.  Information sharing could also extend to law enforcement investigations.  While the precise language is still being negotiated, the basic approach states:

Each party shall ensure, as appropriate and mutually agreed, within the limits of national legislation, policies, practices, and applicable international agreements and arrangements, that its competent authorities have the ability to provide the competent authorities of any other Party, either on request or on its own initiative, with information concerning enforcement of intellectual property right infringements.

In other words, widespread information sharing between countries as party of any investigation.

The international cooperation chapter also includes extensive provisions on capacity building and technical assistance.  This is noteworthy since it (1) confirms the vision that developing countries will ultimately be pressured to join ACTA and (2) represents a counter to the developing country focus at WIPO.  While WIPO has typically provided this assistance, the emergence of the development agenda has promoted a more balanced approach to technical assistance in developing countries.  ACTA seeks to return technical assistance to an enforcement oriented approach.

As a starting point, ACTA states:

In order to facilitate the implementation of this Agreement or the accession thereto, Parties shall [endeavour to] provide, on request and on mutually agreed terms and conditions, assistance in capacity building and technical assistance in favour of developing country Parties to this Agreement…

Morocco has been particularly aggressive on the capacity building front, calling for a special fund to finance ACTA activities and listing many areas for technical assistance, including the promoting the culture of intellectual property.


  1. “promoting the culture of intellectual property.”

    Now THAT’S an oxymoron.

  2. “at least in cases of willful trademark counterfeiting and copyright or related rights piracy on a commercial scale.”

    This may be a dangerous slope. I completely understand and agree with the scope and ideology of putting a provision like this in there, but the question that needs to be posed: “Are we going to start sending CEO’s over at Google to jail over Youtube?”

    What happens when legitimate innovation isn’t covered by current copyright law? Is there a way to detect and protect innovators from criminal proceedings? I think if we were to put a criminal element into this, that it needs to be very clearly spelled out.

  3. Why ACTA?
    Why ACTA?

    The more leaks I read about, the more I have to ask “Why ACTA?” Wouldn’t everything covered under the ACTA discussions be more appropriate to discuss under the WIPO or WTO umbrella?

  4. Anonymous Coward says:

    Back in the old days, intellectual property was actually called intellectual privilege. So, for me, IP stands for Imaginary Privilege.

  5. Chris Brand says:

    Re: Why ACTAsho
    Of course they should be done under WIPO or WTO, but they’d never be able to push something like this through there. That’Ms why.

  6. Why ACTA?
    “never be able to push something like this through”

    Agreed. But I am amazed that it has gone on this long and come this far without any of the negotiating countries pointing this out. Or perhaps they have, but the secrecy has prevented them from saying so publicly.

    In any event, the various countries involved should have walked away from ACTA long ago, while pointing out that there was already an existing and proper venue for these topics.

  7. “Seek the advice of non-government persons or groups”

    I take it that is code for RIAA, MPAA, CRIA etc,etc.

  8. Anonymous Coward says:

    It stands for the Anti-Consumer Trade Agreement.

    Jamie Love of KEI claims that the US Trade Representative has already “told members of Congress it is their intention to marginalize the participation by consumer interest organizations in the new forum.”

  9. and commercial scale is defined as: something not of commercial scale.

  10. ACTA “It is the will of Landru”
    With the potential of becoming a self sustaining, self modifying “beyond the law” rule maker, ACTA has a lot of potential to run amuck.
    This is the stuff of science fiction, unelected trade representatives turned into “Lawgivers”.

    Time to pull the plug.

  11. house sensuousTerminator says:

    It’s the skynet of laws is what it is!

  12. Alien Observer says:

    You asked for it, folks – you got it!
    Welcome to the new world order of “Inverted Totalitarianism”.

    Busses arrive every 15 seconds. No departures scheduled.

    Enjoy the enslavement.

  13. Dylan Reeve says:

    Oh sure, this is okay
    This sort of thing is fine, but the US political right objects to the UN, sees INTERPOL as some sort of covert effort to undermine US legal soverignty and won’t become party to the ICC because they refuse to submit to any external legal authority.

  14. Citizen
    So much for Sovereignty.

  15. pat donovan says:

    a golbal corp, with unlimited power… that’s the NWO, right?

    where the ability to commit a crime is reason enough to assume guilt..
    (seed-cleaners, sexual registry, p2p)

    they don’t need terrorism pandemics of invasions of little green men from mars
    to pull this off.. they have cd’s.


  16. Sovereignty dude says:

    Where are the Republicans?
    Given the Republican opposition to international participation in agreements like the International Court, International Law of the Sea, Convention on Rights of the Child etc etc, can we expect them to take a similar stance on ACTA?

    Calling the GOP Sovereignty Caucus: you are needed.

  17. Funonymous says:

    Which ones?
    I’m sure the pro corporate billionaire republicans will keep the theocratic idiot ‘Fear World Government’ republicans in the shed behind the mansion for this one. They are all tuckered out from their ‘don’t give us healthcare’ fight which they unknowingly waged on behalf of the healthcare industry lobbyists (and Rick Santelli) that wrote up the ground work for all of that Tea Party stuff.

  18. danny
    ACTA = more money for “poor” hollywood, ACTA is fake and gay, hahaha i have encrypted VPN, SO suck my ass MAFIAA,MPAA,RIAA, !!!

  19. Encryption Technologies WILL BE OUTLAWED
    Danny, I guarantee that the use of VPN and encryption technologies will eventually be outlawed if any measure of ACTA is enacted in sponsoring countries.

    These greedy bastards what to be able to track and recorded everything we do and share it with each other never being required to tell us their doing it “in case” there is a violation.

    And they are working very hard to create a system that end runs most laws requiring notification of investigation, etc.

    It’s pure evil and must be stopped.

  20. They’re not smart enough to fix the business but they are powerful enough to fix the customers.

  21. Anti ACTA
    I don’t think so!

    This kill the internet completely and destroy SMS and shut down all current communications.

    All corporate communications and transactions will be under scrutiny, all government communcations and transactions would have to follow the new laws.

  22. says:

    Legal review of the ACTA issues
    Interesting post. Australian scholar Kim Weatherall has also given her incisive comments on the upcoming negotiations at