ACTA, short for the Anti-Counterfeiting Trade Agreement, is a multi-party trade agreement being negotiated in secret by the U.S., the states of the European Union and several other nations. While its name suggests a laudable purpose, the prevention of international trade in counterfeit goods, the secrecy of the negotiations raise cause for concern. As details leak out about the contents of the proposed treaty, as such details always do, it becomes clear that much more is happening here than one might suppose. Indeed, these negotiations are being used to undermine the legal system of copyright in place internationally in favor of a one-way system that benefits special interests at the expense (literally) of consumers. The more we learn, the clearer becomes the need for consumer groups and others interested in fair copyright to “ACTA up” in opposition to these negotiations.
Not everyone is happy with the secrecy of the ACTA negotiations. This news report tells of a letter written by two US Senators to the US Trade Representative, asking that the text of the proposed treaty be made public. They cite privacy concerns, issues involving individual civil rights (such as the right to be free from warrant-less searches and seizures) and fundamental changes to the balance struck by international copyright laws. One major privacy concern is the possibility of border searches, where customs officials would be authorized to look for and seize allegedly infringing goods, even on laptops carried through airports or across borders.
So what else is in ACTA that has Senators Sanders and Brown so incensed? There is a nice, short summary of the key provisions of the US proposal here on the blog of Canadian law professor Michael Geist. But I want to focus on a slightly longer report written about ACTA for the Library Copyright Alliance by Janice Pilch of the University of Illinois. This Issue Brief nicely explains the context and key provisions being discussed in the ACTA negotiations, and it focuses on the specific concerns of libraries.
Two things particularly struck me in Pilch’s analysis of ACTA. The first is the harm it could do to technological innovation. As is often the case, the US Trade Representative apparently sees himself as an agent for the major entertainment industries, and is willing to sacrifice other, developing business models to the protection of their interests. This is clear in the concern that ACTA will unfairly impose liability for copyright infringement on Internet Service Providers whenever their networks are used to transmit infringing content. ACTA seems to carry a “three strikes” provision that would require disconnection of Internet users whenever there have been three accusations (not proof) of infringement. The result would, at least, be a loss of business for ISP and a real fear of developing new communication technologies because of the threat of liability for how those technologies are used. Worse, some suggested provisions would encourage ISPs to monitor user content and report suspected infringement. As Pilch notes, the Library Copyright Alliance is asking that ACTA focus on commercial counterfeiting and not penalize particular technologies for the way they are sometimes used.
To me an even bigger concern is that ACTA represents a forum shift in international copyright regulation. When I was in law school, we spent a lot of time discussing how our procedural rules were intended to prevent “forum shopping” — seeking a sympathetic court even if the area in which that court sat had little connection to the issue involved. Forum shopping is often costly and unfair, and US jurisdictional rules discourage it. But in a similar way, the US Trade Representative and the legacy content companies have been forum shopping internationally for a while now. Pilch recounts the way industrialized nations moved toward international forums like the World Intellectual Property Organization in order to force stronger IP rules on developing nations and are now moving to these multi-party agreements because of the perception that those nations have gained too much influence at WIPO. The goal seems to be to find a way to continue to treat developing nations as markets rather than partners, whose own need for technological innovation and infrastructure development are subordinated to the desire to protect the sales of traditional goods produced by the industrial nations. Such forum shopping also undermines the democratic process, since it uses trade agreements, which do not require legislative approval, to enforce rules the legislature is unwilling to enact into law.
ACTA raises a lot of serious concerns for consumers, fair copyright advocates and those concerned about international development. Like many other similar attempts to make law behind closed doors, this is an effort where sunlight and transparency is badly needed.