The reverberations from the SOPA fight continue to be felt in the U.S. (excellent analysis from Benkler and Downes) and elsewhere (mounting Canadian concern that Bill C-11 could be amended to adopt SOPA-like rules), but it is the Anti-Counterfeiting Trade Agreement that has captured increasing attention this week. Several months after the majority of ACTA participants signed the agreement, most European Union countries formally signed the agreement yesterday (notable exclusions include Germany, the Netherlands, Estonia, Cyprus and Slovakia).
This has generated a flurry of furious protest: thousands have taken to the streets in protest in Poland, nearly 250,000 people have signed a petition against the agreement, and a Member of the European Parliament has resigned his position as rapporteur to scrutinize the agreement, concluding that the entire review process is a “charade.”
Some are characterizing ACTA as worse than SOPA, but the reality is somewhat more complicated. From a substantive perspective, ACTA’s Internet provisions are plainly not as bad as those contemplated by SOPA. Over the course of several years of public protest and pressure, the Internet provisions were gradually watered down with the removal of three strikes and you’re out language. Other controversial provisions on statutory damages and anti-camcording rules were made optional rather than mandatory.
While the Internet provisions may not be as bad as SOPA, the remainder of the agreement raises many significant concerns.
Countries such as India have expressed concern that it conflicts with the TRIPS Agreement. Other elements of the agreement increase the standards in the WIPO Internet Treaties and the commercial scale definition at the WTO. The agreement adds new criminal provisions, pressures ISPs to take greater action, and heightens border measures. There remains ongoing debate as to whether the substance of ACTA requires legislative change in many signatory countries (a somewhat dated site on many ACTA issues here).
Beyond the substantive concerns, the ACTA process remains a major issue as it sets a dangerous precedent for international IP agreements. For years, the ACTA process was shrouded in secrecy, with only the occasional leak bringing plans to light. Wikileaks cables confirmed that the secrecy was viewed as a serious problem in many participant countries. In fact, even as most countries supported greater transparency and the release of draft texts, the U.S. steadfastly refused, using transparency as a bargaining chip to extract concessions from other negotiating partners. In addition to the transparency problems during the negotiations, the express exclusion of many countries from the process raises real fears that they will face increased pressure to meet ACTA standards in the years ahead.
Given the ongoing concerns, the big question now is whether much can be done. The majority of ACTA countries have signed the agreement, but it will only take effect once five countries have formally implemented and ratified it. That is not expected until at least May 2013, opening the door to stopping the agreement from taking effect. While there are global initiatives such as the AccessNow petition, much of the activity has shifted to specific countries or regions:
- Europe is home to the most active anti-ACTA effort since there is still a possibility that the European Parliament may reject the treaty. There remain serious doubts about whether ACTA is consistent with the EU Acquis. Learn more about what can be done at La Quadrature du Net, EDRI, the Open Rights Group, and FFII.
- In Canada, the Department of Foreign Affairs is conducting an open consultation on ACTA. Email your comments to the department or write Consultations and Liaison Division (BSL), Anti-Counterfeiting Trade Agreement (ACTA), Foreign Affairs and International Trade Canada, Lester B. Pearson Building, 125 Sussex Drive, Ottawa, Ontario, K1A 0G2. A March 2011 Standing Committee on Canadian Heritage report recommended limiting Canada’s ACTA commitments.
- In the U.S., much of the focus is on whether ACTA must be approved by Congress. Senator Wyden has raised questions about the issue. KEI has extensive coverage of the U.S. perspective on ACTA.
- In Australia, the Joint Standing Committee on Treaties is accepting submissions on ACTA until January 27, 2012 (Kim Weatherall’s submission here). Australia tabled the agreement in Parliament on November 21, 2011 and has taken the position the agreement will not require any legislative changes. The Australia Productivity Commission recommended in 2010 that Australia not include IP provisions in trade agreements.
- The New Zealand government has posted information on ACTA on its website.
- Switzerland and Mexico have yet to sign ACTA.
The dangers associated with ACTA are not limited to this particular agreement. The agreement opens the door to further secretive negotiations, such as the Trans Pacific Partnership, which contain extensive IP provisions that extend beyond ACTA. The SOPA battle was a big win for those concerned with balanced copyright and the open Internet, but it is by no means the end of the fight.