The final ACTA?

Depending on your viewpoint, the Anti-Counterfeiting Trade Agreement (ACTA) is either a necessary tool for the international protection and enforcement of intellectual property rights or an unwarranted intrusion into people’s private lives which will be abused by rights holders and amounts to an infringement of civil liberties. ACTA has been a hot topic in the IP world and has resulted in protests similar to objections raised regarding similar recent proposed legislation in the United States – SOPA (Stop On-Line Piracy Act) and PIPA (Protect IP Act).

The highly controversial ACTA (the current text of which can be found here)  is embarking on a key phase of the legislative process which will shape how and if it is to become law in the EU. It has recently been submitted to the Court of Justice of the European Union (CJEU) for a ruling on its legality and thereafter, depending on the decision of the CJEU, it could be passed to the European Parliament for a decision on whether it will become law or not.

What is ACTA and why is it so controversial?
ACTA is an international agreement signed by around 30 countries including most of the Member States of the EU, the US, Australia, Canada, Morocco, New Zealand, Japan and South Korea. It proposes a legal framework for the enforcement and protection of intellectual property rights and it is particularly aimed at tackling counterfeit goods and preventing online piracy. Substantively, ACTA restates much of the existing law in the UK and reinforces measures which are already available to rights holders.

For example, they can already seek injunctions (interdicts in Scotland) in a Court action and seek orders for delivery up/destruction of illegal goods using the Intellectual Property (Enforcement etc) Regulations 2006 and governing UK IP legislation if it suspects infringement is occurring. However, it will mean that these same rights and remedies are now available in the other signatory countries where they may not have been previously. Further, it could engender an integrated approach for mutual assistance amongst the signatory states which could mean that intellectual property rights are more easily enforced in an international forum.

ACTA’s critics argue that it contains vaguely worded provisions which could potentially allow internet service providers to monitor and disconnect repeat infringers and that it makes available unfair statutory damages for online music infringement to rights holders. The critics of ACTA also argue that it will give customs officers much greater powers to search and seize goods which are suspected of infringing intellectual property to prevent them from crossing national borders.

In addition to these concerns, there is a huge amount of suspicion surrounding ACTA because it has largely been drafted and negotiated behind closed doors. In truth there is nothing odd in this approach as all such trade agreements are formed in this way but this alleged secrecy has been seized upon by critics. Critics also claim that the main sponsors of ACTA have ignored protests, particularly in Poland, against the Agreement and that it will be used to curb innovation because major corporations will use ACTA to prevent competition.

Whether any of these criticisms are justified remains to be seen. However, the wording of the current version of ACTA suggests that it is open to interpretation (or misinterpretation!).

What next for ACTA?
The MEP David Martin is the Rapporteur for ACTA and he is currently canvassing opinions and consulting with stakeholders on the Agreement before he provides a recommendation on the final ACTA text to the International Trade Committee on 24/25 April. The Committee make its decision on 30 May and the European Parliament will then vote in June or July to either pass ACTA into law or reject it.

It is a case of ‘watch this space’ to see how ACTA proceeds through the legislative process. Whatever the CJEU and the European Parliament decides, ACTA will no doubt continues to be promoted and criticised in equal measure.

Mark Cruickshank

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