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The ACTA – It’s Top-Secret, It’s Controversial, And It Could Change The Face Of Copyright Enforcement

The Anti-Counterfeiting Trade Agreement (ACTA) made the news again last Friday, after the Motion Picture Association of America sent a memo to the Senate Judiciary Committee affirming its support of the treaty. The MPAA condemned the opposition’s “strident attacks” and accused it of an irrational hatred of the entertainment industry. The memo comes shortly after the 6th round of ACTA negotiations that took place earlier this month.

The Anti-Counterfeiting Trade Agreement

ACTA is a proposed agreement between the United States, the European Union, Australia, Canada, Japan, Singapore, Morocco, Mexico, the Republic of Korea, New Zealand, and Switzerland. The purpose of the agreement is to combat the spread of counterfeit goods, including software and information technology.

All states that have been party to the negotiations know the details of its provisions. Additionally, ACTA proponents in the recording industry, critics at Public Knowledge (home page), as well as some internet providers and electronics companies have been given the text of the agreement. Yet despite this information-sharing among the key players, the actual text of ACTA is still a “properly classified” secret—a state of affairs that has sparked ire and curiosity among those watching its progress.

The Obama administration claims to be keeping the text a secret for reasons of national security.  The White House denied a Freedom of Information Act request for the text of ACTA by Knowledge Ecology International in March 2009. This follows the Bush administration’s decision to deny a similar FOIA request by the Electronic Frontier Foundation and Public Knowledge in early January 2009. EFF and Public knowledge later dropped their suit, finding it futile.

As the MPAA memo shows, proponents argue that ACTA is a reasonable—indeed, a necessary and overdue—response to increased global piracy. They argue that the entertainment and recording industries will suffer tremendously if this piracy is allowed to continue, and that ACTA is a win-win solution for creators, copyright owners, and consumers. The Office of the United States Trade Representative (USTR) ACTA Fact Sheet (pdf) also points to physical threats to health and safety from counterfeit medical supplies, as well as alleging the economic dangers of Internet piracy.

Controversial Aspects

ACTA opponents point to public comments and leaked documents that suggest problematic aspects of the proposed agreement. Although the secrecy of ACTA negotiations prevents any precise legal analysis of its terms, particular concerns have emerged among ACTA critics.

Leaked documents suggest ACTA proponents want the agreement to “encourage” ISPs to “cooperate” with copyright holders in removing infringing materials. There are no specifics on what this cooperation means or how it will be encouraged. However, the Electronic Frontier Foundation notes that ACTA-supporting copyright holders are the same people who want Internet providers to terminate customers’ Internet access after repeated allegations of copyright infringement. These ACTA supporters also want to make network-level filtering mandatory for Internet providers, which would involve deep packet inspection (looking at the data of Internet transmissions) of customers’ communications. These measures have serious privacy implications because Internet providers would have to look closely at the actual content of their users’ communications. There are also due process issues. Would a copyright-holder have to prove infringement in court to get an Internet provider to cut off service to an alleged repeat offender? Or would a complaint from a copyright-holder be enough?

ACTA might also create greater border search power, which has inspired fears of inspectors seizing travelers’ iPods filled with downloaded songs.  Participants in ACTA negotiations have sought to allay these fears by saying that ACTA will not target personal use of iPods and computers. The ACTA Fact Sheet contains a statement that ACTA’s focus is on large-scale infringement and does not require searching personal iPods or laptops.

ACTA critics also have more generalized concerns. First and foremost, as Public Knowledge argues, is the secrecy of the ACTA proceedings.  The USTR denies any secrecy in the fact sheet linked above, pointing out that preliminary negotiations were announced and that the USTR asked for comments from the public. However, it is undeniable that proposed provisions have been kept secret and even been declared classified. Another concern is that ACTA will not actually be a treaty. Instead, it will be an “executive agreement,” which means it will not require Congressional approval. Finally, critics fear ACTA will be used as leverage to pass expansive domestic copyright legislation.

While ACTA may be controversial and scary to many, its supporters show little sign of slowing.

ACTA Timeline

The 6th round of ACTA negotiations took place November 4-6, 2009. Representatives from the various countries agreed to meet again for another round in January 2010. They aim to conclude the agreement “as soon as possible” in 2010.

For More Information

By Anjali Bhat and Paul Sullivan.

About the Author

Anjali Bhat

Anjali is a 2L at Columbia Law School.
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