On October 2 the U.S Trade Representative released what has been called the final, or “nearly-final,” text of the draft Anti-Counterfeiting Trade Agreement. ACTA, as it is known, has been the subject of a good deal of controversy for several reasons. First, because much of its negotiation has been in secret. Second, because it seems like an end run around both the WIPO / WTO negotiation process for harmonized IP rights protection and around Congress, since it is billed as an “executive agreement” rather than a treaty and therefore does not need Congressional approval. Finally, rumors have flown that ACTA would force substantive and draconian changes in US law (and the laws of other countries) that would greatly increase the scope of IP protection without legislative action on those topics.
It is clear that this last draft of ACTA is substantially weaker than previous versions that have been released, and a very great deal weaker than what rumor said was contained in the earlier undisclosed drafts. Nevertheless, I still come away from a reading of this text thinking that its primary purpose is to shift lots of the costs of enforcing IP rights from the private industries that hold those rights to government agencies, funded by taxpayers. It is odd (or maybe not odd at all) that large corporations, which generally complain about excessive regulation, seem to embrace “big government” when it serves their interests at lower cost (to them).
Because it is a trade agreement not subject to Congressional oversight, ACTA is not, technically, permitted to change US law. It is billed as an agreement about enforcement of existing laws, not an attempt to enlarge the legal scope of IP rights. That claim, however, is subject to lots of skepticism. Indeed, Senator Ron Wyden of Oregon has asked the Congressional Research Service to study the current iteration of the agreement to see if and where ACTA requires commitments incompatible with US law.
One change that ACTA was rumored to contain – a “three strikes” provision that would require ISPs to disconnect users who were accused (by the content industries) of copyright infringement – is not found in this text. According to this article from Bloomberg, pressure from Google is the reason we do not have to fight off that particular bad idea. Nevertheless, there are several places, notably in the border security provisions, where this version of ACTA would appear to allow enforcement of IP regulations without judicial involvement, something that seems like a significant change in the way IP law currently works. The whole issue of how the “remedies” sections of ACTA might alter the legal landscape for US citizens is detailed in this article on “Areas where the Oct. 2, 2010 ACTA text is inconsistent with U.S. law.”
Another place where this text is not as bad as it could be is on DRM. The US did not succeed in getting its negotiating partners to agree to DMCA like provisions; no doubt the abject failure of those provisions to prevent piracy, could with their unfortunate impact on legitimate activities like teaching, contributed to this failure. Nevertheless, legal protection for of some kind for DRM systems is encouraged in this text of ACTA and DRM systems, by definition, extend a content owners control beyond what is provided for in national copyright laws.
There are several definitional problems in this final draft of ACTA. This post from TechDirt discusses one of them, the definition of “commercial scale,” the breadth of which seems to make lots of essentially private activities into criminal acts. Also, the concept of piracy, which has usually referred to large-scale commercial infringement, is defined in this text as any copying that is not authorized by the rights holder and which would be infringing under the laws of the country involved. In both these cases we see the ratcheting up of both rhetoric and actual enforcement to a level where all infringement is potentially criminal. Thus more enforcement costs can be transferred from private industry to national governments.
It remains unclear how this “final” text of ACTA will be implemented. Although no additional negotiations are scheduled, there are still significant areas of disagreement that are noted in the text. One important such area is whether or not the provisions apply only to copyright protected goods or also to patented inventions. The countries that were party to the negotiations have up to two years to “sign on” to ACTA but, in its current state, it is unclear what such signers would be agreeing to and how they could implement ACTA in the national laws. Perhaps, after all, this long and expensive process of negotiation will result in nothing more than a bargaining chip for industries to use to move enforcement costs off of their books and on to taxpayers.