ACTA: Why You Should Still Care

This post appears as a guest column on GigaOm today:

After years of secrecy, the eighth round of talks aimed at drafting an international treaty called the Anti-Counterfeiting Trade Agreement (ACTA) recently concluded in New Zealand – and in the face of public pressure, a version of the text was subsequently made available to the public. The ACTA is neither a trade agreement nor one focused primarily on counterfeiting, but a copyright deal featuring provisions on Internet service provider and Internet company liability, DMCA-style notice and takedown requirements, legal protection for digital locks, and requirements for statutory damages that could result in millions in liability for non-commercial infringement – even heightened searches at border crossings.

Ever since the ACTA partners – among them the U.S., E.U., Canada, Japan, South Korea, Australia, New Zealand, Mexico, Morocco and Singapore – announced negotiations plans in October 2007, ACTA has been dogged by controversy over a near-total lack of transparency. Early talks were held in secret locations with each participating country offering virtually identical, cryptic press releases that did little more than fuel public concern. Now that the ACTA text is public, some might wonder whether there’s still cause for concern. Indeed, given widespread support for measures that target genuine commercial counterfeiting, some might believe it’s time to actively support ACTA.

It’s not – at least not this version.

Still secret

From a transparency perspective, the text release still feels like the exception to the general secrecy rule. The ACTA governments have revealed that the next round of negotiations will take place in Switzerland in June, but currently refuse to provide a specific location or dates. Moreover, the official release scrubbed all references to country positions (such information was available in a previously leaked version), so as to U.S. government claims that ACTA is fully consistent with current U.S. law, at this point we have to take their word for it.

Different region, different rules

Of even greater concern are the provisions themselves. Because of the large number of substantive rules and the differences in domestic law among the ACTA countries, fears about specific provisions vary from region to region. In the U.S., ACTA might means the rules for obtaining injunctions would have to be changed, removing some of the balancing safeguards that currently exist. In Europe, ACTA’s privacy implications have generated concern from data protection authorities and the prospect of mandatory statutory damages, which has led to the multimillion-dollar file-sharing lawsuits in the U.S., would represent a major change in the law there.

Virtually every member country would have to amend its own rules and regulations: Japan would have to change its laws to require ISP policies on allegations of subscriber infringement, Australia would need anti-camcording rules, New Zealand would have to change its anti-circumvention rules and Canada would be forced to adopt a notice-and-takedown system similar to the one found in the U.S. Of course, the many countries excluded from the ACTA talks – including China, Brazil and India – would likely face pressure to conform to ACTA standards and if they complied, even more dramatic changes.

Behind closed doors

Beyond the fundamental reshaping of intellectual property law on a global scale, ACTA is also reframing how those laws are made. The alphabet soup of international organizations typically responsible for such issues – WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD – are all far more open, transparent and inclusive than ACTA.

Moreover, final approval of ACTA raises significant constitutional issues. In the U.S., ACTA is being treated as executive agreement in a blatant attempt to sidestep Congressional approval. Across the pond, the European Parliament has demanded far greater involvement in the ACTA process, but has been largely rebuffed by the European Commission, which heads its delegation.

Public pressure helped make ACTA marginally better, but the release of text only confirms many of the fears regarding the substance of the treaty. Add in the ongoing transparency and process concerns and it is clear that public engagement on ACTA is needed now more than ever.


  1. Sandy Crawley says:

    Yes open it up but don’t try for one-size-fits-all.
    I agree that such far-reaching issues need to be subjected to public scrutiny. Still. characterizing the various approaches and ramifications for diverse jurisdictions doesn’t add up as good criticism. Such variety is inevitable, unless someone thinks there should be hard and fast rules that fit everyone. Different jurisdictions will rightfully apply distinct solutions. Does the good professor profess for a “Made-in-Canada” set of copyright reforms?

  2. Michael Geist says:

    @Sandy Crawley
    Yes, I’ve been very consistent in arguing for a made-in-Canada approach. The problem with ACTA is that it does not allow for distinct solutions.


  3. ALL Canadians Should Reject ACTA Outright
    First. It’s NOT a trade agreement therefore it should not escape the scrutiny and review of every countries sitting government with a free vote.

    Second. ACTA circumvents too many individual rights and freedoms and most importantly judicial oversight. The big media and content players simply want to endrun the law and the requirement to defend their precise IP and copyrighted material in CIVIL courts.

    Third. ACTA criminalizes fair use and sharing. This is the point that big media simply refuses to deal with. More locks and more fines is NOT going to solve any of their perceived problems or failing business models.


  4. Michael: You once again list, in essence, 3 groups as examples. WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD are all under the auspices of the United Nations; UN rules apply. Not meaning any disrespect, as you make a good point, but listing the above 5 groups as separate agencies, while technically correct, neglects that they operate under the same rules put in place by the parent organization. Hence my view of 3 groups.

    As far as your point about ACTA being consistent with US law, well, we need to take with a grain of salt everything said about compliance with national laws by all governments. How many democratic countries are going to say to their electorate that we are negotiating a treaty which will likely gut their home grown policy in favour of the wet dreams of a couple of lobby groups? The statements about compliance with national laws, in general, reflect the bargaining positions of the nations; they can’t definitively state that it is in compliance with their national regulations, as it is still a draft treaty and therefore at most set in wet Jello. This also means that I can’t agree with your definitive statement “The problem with ACTA is that it does not allow for distinct solutions”. As a draft treaty that could very easily change given enough pressure from enough voices at the negotiating table.

  5. Earthling says:

    yes, the alphabet soup list, they are more open. But this is the NWO, and that’s why people are apathetic. Resistance is futile.

  6. pat donovan says:

    and expect the same fairness and balanced reason that free trade got from the states.

    ie: whatever hurts them is outlawed… including low taxes (lumber)


  7. Resistance is not futile
    We still outnumber them.

  8. Just had a 10 minute telemarketing survey call asking directly about this legislation and my support — unfortunately it didn’t occur to me to record it (nor do I have anything set up!). Definitely coming from the feds or the industry.

  9. Jim Dixon says:

    Security Systems Specialist
    Correct me if I am wrong, but I thought Canada introduced a tax on all storage medium that is collected and dispersed amongst the ‘artists’ whose work MIGHT be copied from one medium to another. In short, taxed on something one MIGHT do. If the tax is collected because we might do something, doesn’t it then make it OK to ‘do it’?
    If so, how then can Canada even consider participating in yet another addition to govt and SIGs domination of the Internet under the guise of protecting copyright copyrights?
    Canada should walk away.

  10. Use what pro-Democracy Chinese dissidents (and anyone else who wants to evade censorship). Install Freenet (which is a “hidden” Internet of sorts): [more info at:

    For accessing the web anonymously (or to get through an institution or country’s censorship), there is Tor:

    Because of ACTA, using old open p2p networks like BitTorrent, Gnutella (inc. Limewire, Bearshare) will just get your door kicked in by the thugs in Law Enforcment.

  11. VasilijMakarov says:

    отзыв на этот пост
    пассажирские перевозки, трансферы по Украине