Monday, 14 November 2011

Hollow Words

The USA, Australia, Canada, Japan, South Korea, Morocco, New Zealand and Singapore recently signed the Anti-Counterfeiting Trade Agreement (ACTA). The agreement should be 'a major tool in the battle against infringements of IP rights', the representatives of the signing countries explained, in particular against counterfeiting practices around the world. It contains mechanisms to improve cooperation in the enforcement of IP rights, including on how to combat infringements in a digital environment and how these measures should be enforced.

Shortly after the signing ceremony, on 3 October, the US Chamber of Commerce released a statement applauding ACTA as 'a big victory for the American business community'. Although ACTA should undoubtedly be considered as (another) step in the right direction by creating a more concrete and efficient level of IP enforcement, and is based on the standards of the World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights, it does make you wonder: 'a big victory for the American business community'? Really? This statement seems to lack any substance.

Firstly, representatives from the EU, Mexico and Switzerland did attend the ceremony and confirmed their 'continuing strong support' but they did not sign. Why not sign if you support the agreement? Secondly, the agreement was not discussed with the World Intellectual Property Organisation, public interest groups or the tech industry, and was not subject to a public debate. 

ACTA also no longer supports elements of the US Digital Millennium Copyright Act, which came into force in 1998 and made it a crime to unlock a DVD to copy it. ACTA contains a loosely worded ban on tools used to unlock 'digital rights management' (DRM) technologies, and, in a footnote, the signing countries agreed that manufacturers and developers won't be required to ship products with DRM restrictions. 

If this was not enough, ACTA does not require countries to hold an ISP responsible for copyright infringements committed by its users. Perhaps that explains why some EU countries, like the UK where the Digital Economy Act proposes such a regime, did not sign. 

But the real flaw of the ACTA is the fact the main actors are not on board. It might be a bold attempt to create a global copyright system, but without the world's main infringers being involved, such as China, India, Russia and Brazil, it makes you wonder what the real value of ACTA is: just hollow words and political show seems the appropriate answer.

Published previously in the October issue of E-Commerce Law & Policy magazine © 2011 Cecile Park Publishing Ltd, London, UK. Copyrights apply at all times. Pics: and