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The Anti-Counterfeiting Trade Agreement (ACTA) is a proposed plurilateral trade agreement that would impose strict enforcement of intellectual property rights related to Internet activity and trade in information-based goods. The agreement is being secretly negotiated by the governments of the United States, Japan, Switzerland, Australia, New Zealand, South Korea, Canada, and Mexico, and the European Commission.[1][2] If adopted at the 34th G8 summit in July 2008, the treaty would establish an international coalition against copyright infringement, imposing strong, top-down enforcement of copyright laws in developed nations. The proposed agreement would allow border officials to search laptops, MP3 players, and cellular phones for copyright-infringing content. It would also impose new cooperation requirements upon Internet service providers (ISPs), including perfunctory disclosure of customer information, and restrict the use of online privacy tools. The proposal specifies a plan to encourage developing nations to accept the legal regime, as well.
The European Commission, the Office of the United States Trade Representative, the Australian Department of Foreign Affairs and Trade, and other government agencies have acknowledged participating in ACTA negotiations, but they have refused to release drafts of the treaty or to discuss specific terms under discussion in the negotiations. Public interest advocates in Canada filed an access to information request but received only a document stating the title of the agreement, with everything else blacked out.[2] On May 22, 2008, a discussion paper about the proposed agreement was uploaded to Wikileaks, and newspaper reports about the secret negotiations quickly followed.[3][4][2][5]
ACTA is part of a broader "forum shifting" strategy employed by the trade representatives of the U.S., E.C., Japan, and other supporters of rigid intellectual property enforcement: similar terms and provisions currently appear in the World Customs Organization draft SECURE treaty.[6]
Contents
[hide]Provisions
Border searches
Newspaper reports indicate that the proposed agreement would empower security officials at airports and other international borders to conduct random ex officio searches of laptops, MP3 players, and cellular phones for illegally downloaded or "ripped" music and movies. Travelers with infringing content would be subject to a fine and may have their devices confiscated or destroyed.[2][5]
Some countries already conduct border searches of electronic devices without probable cause. In July 2008, the United States Department of Homeland Security disclosed that its border search policies allow U.S. Customs and Border Protection agents to conduct random searches of electronic devices for "information concerning terrorism, narcotics smuggling, and other national security matters; alien admissibility; contraband including child pornography, monetary instruments, and information in violation of copyright or trademark laws; and evidence of embargo violations or other import or export control laws."[7][8] Senator Russell Feingold called the policies "truly alarming" and proposed to introduce legislation to require reasonable suspicion of illegality and to prohibit racial profiling.[7] The Ninth Circuit Court of Appeals has previously upheld the constitutionality of laptop searches without reasonable suspicion at border crossings.[7]
ISP cooperation
The leaked document includes a provision to force Internet service providers to provide information about suspected copyright infringers without a warrant, making it easier for the record industry to sue music file sharers and for officials to shut down non-commercial BitTorrent websites such as The Pirate Bay.[9]
Enforcement
ACTA would create its own governing body outside existing international institutions such as the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO) or the United Nations.[2][10]
Interpretation
It has been argued[11] that the main thrust of ACTA is to provide safe harbor for service providers so that they may not hesitate to provide information about infringers; this may be used, for instance, to quickly identify and stop infringers once their identities are confirmed by their providers.
Similarly, it provides for criminalization of copyright infringement, granting law enforcement the powers to perform criminal investigation, arrests and pursue criminal citations or prosecution of suspects who may have infringed on copyright. It also allows criminal investigations and invasive searches to be performed against individuals for whom there is no probable cause, and in that regard weakens the presumption of innocence and allows what would in the past have been considered unlawful searches.
More pressingly, being an international treaty, it allows for these provisions—usually administered through public legislation and subject to judiciary oversight—to be pushed through via closed negotiations among members of the executive bodies of the signatories, and once it is ratified, using trade incentives and the like to persuade other nations to adopt its terms without much scope for negotiation.
Support
The RIAA supports the agreement, and has given input and suggestions to the creation of ACTA. [12]
Criticism
The Electronic Frontier Foundation opposes ACTA, calling for more public spotlight on the proposed treaty.[13] A British study found that iPods owned by persons 14-24 today contain an average of more than 840 tracks downloaded on file-sharing networks, nearly fifty percent of all music possessed by this segment.[14] The same study also found that 95% of individuals falling under this category have copied music in some way.[14] Thus, some critics argue that ACTA directly incriminates the ordinary consumer activity.[15][16][17]
Additionally the Free Software Foundation has posted their "Speak out against ACTA". The FSF states that the ACTA threatens free software.[18]
External links
- Proposed US ACTA multi-lateral intellectual property trade agreement (2007) posted on Wikileaks
- ACTA document posted on Wikileaks
- ACTA information from IP Justice
- Sunlight for ACTA Campaign at the Electronic Frontier Foundation
- ACTA articles by Michael Geist
- An ACTA Call to Arms: No more secret government posted by William Patry, formerly copyright counsel to the U.S. House of Representatives.
- The Problem With ACTA - Knowledge Ecology Studies comment by Aaron Shaw.
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