Anti-Counterfeiting Trade Agreement

The Anti-Counterfeiting Trade Agreement (ACTA) is an agreement to create new global intellectual property (IP) enforcement standards that go beyond current international law, shifting the discussion from more democratic multilateral forums, such as the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO), to secret regional negotiations. Through ACTA, the US aims to hand over increased authority to enforcement agencies to act on their own initiative, to seize any goods that are related to infringement activities (including domain names), criminalize circumvention of digital security technologies, and address piracy on digital networks.

ACTA was negotiated from 2007 through 2010 by the US, the EU, Switzerland, Canada, Australia, New Zealand, Mexico, Singapore, Morocco, Japan, and South Korea. Eight out of the eleven negotiating countries signed the agreement in October 2011. The number of countries that were part of these negotiations is limited, but the agreement’s provisions would have global consequences for digital freedoms. Once six nations ratify the agreement, its implementation will take effect. As of October 2012, it has only been ratified by Japan.

Why Should You Care About It?

From its inception, ACTA was intended to target the Internet and its users. One of the specific objectives for negotiating ACTA was to extend the existing international IP enforcement norms in the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) to the online environment, and this is due to major US and EU copyright industry rightsholder groups seeking stronger powers to enforce intellectual property rights across the world.

ACTA contains several features that raise significant potential concerns for consumers’ privacy and civil liberties, as well as pose threats to digital innovation and the free flow of information on the Internet. The main issues with ACTA are three-fold:

1. Process: Negotiated in secret, ACTA bypassed checks and balances of both domestic and existing international IP norm-setting bodies without any meaningful input from national parliaments, policymakers, or their citizens. The first text was only officially released in 2010, once it had already been finalized following eight rounds of closed-doors negotiation.
2. Provisions: It would require signatory countries to enact new IP enforcement measures that would call for restrictive rules for the Internet that raise significant potential concerns for users’ free speech, privacy, ability to innovate, and due process rights.
3. Enforcement: It creates a new supra-national ad-hoc institution, an “ACTA Committee”, constituting non-elected members to oversee ACTA implementation and interpretation with no legal obligation to be transparent in their proceedings.

Provisions of ACTA

The final ACTA text includes intellectual property enforcement provisions that have the potential to open the floodgates for negative national legislation, while simultaneously creating strong incentives for online service providers to privately enforce the law in ways that can seriously undermine Internet users’ privacy and freedom of expression. As it reads, its language could also be interpreted to legitimize website filtering and blocking and Internet disconnection.

More specifically, ACTA’s copyright enforcement provisions will lead to:

• ISPs Turning Into Copyright Police: several provisions would increase ISPs’ liability for their users’ activities, and could therefore encourage filtering and blocking of content. This can lead to ISPs extra-judicially terminating accounts of subscribers alleged to have engaged in repeat copyright infringement.

• Violation of Privacy and Due Process: the agreement can increase pressure to expedite information exchanges between enforcement authorities and facilitate processes for copyright holders to gain access to infringers’ info in order to punish individuals.

• Restrictive Digital Locks on Content: ACTA would require signatories to enact legal protections against circumvention of DRM (digital rights management, AKA technological protection measures [TPMs]), even if the reason for breaking the digital lock is not to make an infringing copy.

• Greater Civil and Criminal Penalties for Copyright Infringement: ACTA expands the definition of infringement in a way that could even include non-commercially-motivated infringement, requiring countries to have criminal penalties for aiding and abetting copyright infringement.

• Nondemocratic Enforcement Regime: The agreement calls for the creation of an ACTA enforcement committee that will constitute unelected members from signatory countries to ensure the implementation of the agreement and even have the authority to change specific provisions of ACTA.

What’s Next?

While it was rejected in Europe by a crushing 92% majority of the European Parliament in the summer of 2012, it remains a threat for other signatory nations that have ratified or have yet to ratify ACTA. While China has not been invited, countries like India, and Brazil were formally invited to the negotiations and declined or have refused to join from the outset, expressing they have no interest in joining such efforts to bypass existing international fora and force developing countries to adhere to much lower standards of due process in order to address IP infringement.

All signatory countries will be required to conform their domestic laws and policies to the provisions of ACTA. The final ACTA text does provide for some flexibility and respect for national laws, but it is hard to tell how countries will make use of those if the ACTA Committee and the US Special 301 Report process will be used to push for higher standards of enforcement action.

In the US, this is likely to further entrench controversial aspects of US copyright law (such as the Digital Millennium Copyright Act [DMCA]) and restrict the ability of Congress to engage in domestic law reform to meet the evolving IP needs of American citizens and the innovative technology sector.

Even if a country is not party to the ACTA negotiations, it is likely that accession to and implementation of its provisions by countries will be a condition imposed in future free trade agreements and the subject of evaluation in content industry submissions to the annual Special 301 Report. Ultimately, it will restrict nations’ ability to choose policy options that best suit their domestic priorities and level of economic development.

Questionable Constitutionality in US

During the ACTA negotiations, the Office of the United States Trade Representative (USTR) consistently maintained that it was a Sole Executive Agreement dealing with matters delegated to the President by the Pro-IP Act and, on that basis, did not need Congressional review and approval. At issue is whether the USTR had authority to enter into the controversial IP enforcement agreement on behalf of the United States when the Deputy US Trade Ambassador signed ACTA in October 2011.

The constitutionality of ACTA can be challenged on the following bases:

• The ACTA negotiations began in 2007, yet PRO-IP was not passed until 2008. The administration did not seek, and Congress has not given, ex ante authorization to bind the US to ACTA.
• The plain language of the PRO-IP Act does not authorize USTR to bind the US to any international agreement. Rather, the section merely describes the purposes of a “Joint Strategic Plan against counterfeiting and infringement,” to be coordinated among multiple agencies by the Intellectual Property Enforcement Coordinator (IPEC). Read in its context, the PRO-IP Act that supposedly justifies ACTA does no more than require a multi-agency plan to provide technical assistance to foreign governments.

As the State Department’s website states, EFF made a FOIA request to the State Department in February 2012 for key documents that set out the State Department’s analysis of the constitutional basis for ACTA—the “Circular 175” memorandum, and the accompanying Memorandum of Law. The Circular 175 procedure is the way that the State Department “seeks to confirm that the making of treaties and other international agreements by the United States is carried out within constitutional and other legal limitations, with due consideration of the agreement’s foreign policy implications, and with appropriate involvement by the State Department.”  Circular 175 memoranda must be accompanied by a Memorandum of Law prepared by the Office of the Legal Advisor in the State Department, which generally includes a discussion of the appropriate legal analysis underlying implementation of the treaty at issue.

The State Department responded, and in short they have not created a Circular 175 memorandum and accompanying Memorandum of Law for ACTA.

What You Can Do

• If you’re in the US, call on your Congressional representatives to demand an inquiry into the Constitutionality of ACTA;
• Demand a Congressional investigation into the White House’s assertion that ACTA is designated as an Executive Agreement, which ties the hands of Congress from being able to modify or question the contents of the agreement;
• Spread the word—tell your friends, family, and coworkers about ACTA.