Like many avid internet users, I have followed with interest the debate about ACTA (Anti-Counterfeiting Trade Agreement). After reading numerous articles, watched sensational videos, and discussed ad nauseam with friends, I have realized that what I have come across is a campaign hi-jacked by lies, myths and misconceptions as to rival Malta's misinformed divorce referendum campaign.
I have to say that the videos on Youtube got me worried. I quickly signed the petition, joined the Anti-ACTA groups, and prepared myself for a full-blown fight against the big-governments who want to intrude on our privacy and freedom of expression. Like our MEP Edward Scicluna invited us to do in the University debate last Wednesday, I did not try to understand the details of ACTA but rather saw who the players behind it were. But as usual, my logical instincts took over, and his call to not try to understand ACTA actually pushed me to read the text. And here's what I now know:
- ACTA is not a law like SOPA and PIPA were in the USA. It is an international treaty for collaboration between different countries, including the EU member states, the USA, Canada, Japan, Australia and others. The ACTA text itself says that "this Agreement does not create any obligation on a Party to apply measures where a right in intellectual property is not protected under its laws and regulations." In other words, though the treaty calls for co-operation between countries in the fight against piracy and counterfeiting, it leaves much free-way to each country in how it implements the provisions of the treaty in its national laws. Moreover, the EU Commission itself has highlighted the fact that the treaty does not require any changes to the current EU laws and directives, or to Malta's current national laws on intellectual property. In simple words, what today is illegal will remain illegal, what today is legal will remain legal. Even without ACTA, websites like myp2p and MegaUpload have been closed down, and similar websites will still be closed down even if the treaty is not ratified.
- Most of ACTA is not about the internet. It is about counterfeit and fake goods like clothes and medicines which end up illegally on the market. To take the case of fake medicines as an example, these compete directly with generic medicines (some of which are produced by pharmaceutical companies in Malta), and trick customers in believing something is a medicinal product when in some cases there were even reports of pills which were nothing but lumps of sugar.
- Contrary to what Profs. Scicluna said, ACTA does not consist of "people rummaging through our luggage to check for counterfeit products". Article 14 specifically says that "a Party may exclude from the application of this Section small quantities of goods of a non-commercial nature contained in travellers' personal luggage." Moreover, relevant to its application in the EU, a footnote in Article 13 says that "where a Party has dismantled substantially all controls over movement of goods across its border with another Party with which it forms part of a customs union, it shall not be required to apply the provisions of this Section at that border."
- ACTA does NOT place the onus of preventing piracy on the ISPs. It does NOT make ISPs the police, jurists, and judges of any infringing person. On the other hand, the treaty states specifically in Article 27, which deals with Enforcement in the Digital Environment, that "each Party's enforcement procedures shall apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party's law, preserves fundamental principles such as freedom of expression, fair process, and privacy."
It does NOT limit freedom of expression, the right to privacy, and the right to a fair trial. And thinking about the huge number of EU directives which safeguard fundamental human rights, how did I actually believe this myth to be true in the first place? - In the previous paragraph you may also note that it states widespread distribution. Paragraph 7 of the same article also states that: "a Party shall provide adequate legal protection and effective legal remedies against any person knowingly performing without authority any of the following acts: to distribute, import for distribution, broadcast, communicate, or make available to the public copies of works, performances, or phonograms, knowing that electronic rights management information has been removed or altered without authority." So it is clear that it does not target individual users, not even illegal downloaders. It targets the distributors.
- It is also not true that ACTA will in any way infringe in your right to back-up anything you own on the internet or even sharing it with your friends. From Article 23, Criminal Offences: "Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale." Got that? Commercial scale.
- Last but not least, as the case is today, there is nothing in ACTA which may prevent anyone from creating open-source software and distribute it for free, from creating a home-made video and upload it for free, or from creating a work of art and sharing it for free. It only brings countries together in collaborating to stop people from distributing MY creation, which I do not want to distribute for free, and by doing so make profit from it. And I cannot see what's wrong with that.
That's why I have now realized that my initial opposition to ACTA was based solely on false perceptions and lies. That's why I have now come to the logical conclusion that there is nothing worrying enough in ACTA to make me go to Valletta tomorrow.
Scicluna asked us not to read the text and instead ask who is behind it. I have now read it, and the only thing I am asking is who is behind the orchestrated, deceitful and manipulated opposition to it.
At this point, the only reason why ACTA may not be ratified is that the political price to pay for such a treaty of collaboration is too high. And even though it aims to protect the citizens from being deceived into buying counterfeit products, since it seems that the majority of citizens themselves do not want it, then maybe our representatives should take a step back and let it be debated more intelligently before taking a final decision.
The full text of the treaty can be found here. A very good series of articles on ACTA can also be found in J'Accuse blog.
Mark, this is an interesting post, but I understand that you might be overly-protecting ACTA. One of the fundamental principles mentioned in the link you provided is "fair process". Now, a fundamental question would be this: what does "fair process" mean? And based on which criteria does ACTA propose to distinguish between fair and unfair processing?
ReplyDeleteAlso, why does ACTA use the term Electronic Rights Management instead of the widely rejected Digital Rights Management?
I don't mean to make a partisan comment out of this, but I think that considering who wrote ACTA, and what were the initial intentions, one might project where all this is going... gradually or otherwise...
The right to a fair process is safeguarded in numerous European treaties and in our Constitution itself. It surely cannot undermine your right to a fair trail otherwise the Constitutional Court would definitely decide in your favour. From reading the text, it seems that it is very carefully constructed such as not to interfere with the different laws that different countries might have, and it leaves very much of the enforcement in the hands of the individual parties to the treaty.
DeleteWho wrote ACTA, if I may ask? The only thing I know is that it was drafted between the participating countries.
Well, what we know is that whoever wrote ACTA intended ACTA to be way more restrictive than it currently seems to be, and we also know that who wrote ACTA, seems to be leaving the general public out of the debate.
ReplyDeleteNow, if ACTA does not add to what we currently have, then what does it do, exactly? Overly protecting copyright rights is likely to be counter-productive. DRM systems were unsuccessful because they transformed (the ambiguity of the balance between copyright rights and fair use (or fair dealing) exceptions to those rights) to sharp and clear cut contracts (as described in XML-based licences).
I disagree on many accounts..I'll just mention a few.
ReplyDelete(1) "ACTA is about large-scale and organised infringements of intellectual property" - it has you fooled. ACTA covers for-profit and not-for-profit infringements. ACTA modifies the scope of criminal sanctions in EU Member States, ensuring they will be applied for cases of infringement on a "commercial scale", defined as inducing "direct or indirect economic or commercial advantage" (art. 23.1). This term is vague, open to interpretation, and just plainly wrong when it comes to determining the scope of proportionate enforcement, as it does not make any distinction between commercial and non-profit infringement.
(2) The Commission claims that ACTA does not target non-commercial users infringing on copyright. Why then does the 18 July 2007 discussion paper submitted in interservice consultation in the EU Commission for the negotiating mandate of ACTA include the criminalisation of not-for-profit sharing by individuals? The latter explicitly refers to the need of criminal sanctions for: "significant willful infringements without motivation for financial gain to such an extent as to prejudicially affect the copyright owner (e.g., internet piracy)". This is a fundamentally flawed policy, and ACTA will make it impossible to reform in the EU while exporting it worldwide.
(3) ACTA's overbroad definition of commercial scale runs counter to the EU Parliament position on the IPRED 2 proposal in 2007. According to the EU Parliament, acts "carried out by private users for personal and not-for-profit purposes" should be excluded from criminal sanctions. ACTA contradicts this by expanding the commercial scale definition to acts providing "indirect economic advantage".
(4) Even if ACTA respected EU law, it would still not be acceptable, as it would bind the whole Union to a plurilateral agreement that would prevent us from reforming our copyright and patent law. This is especially shocking at a time when many citizens and advocacy groups are calling for a reform of these laws.
(5) China, Russia, India and Brazil, countries where most of counterfeiting is produced, are not part of ACTA, and have stated publicly that they will never be. Considering the widespread opposition to ACTA, the agreement has lost all legitimacy on the international stage. It hampers the advent of a consensus worldwide to fight "real" counterfeiting".
(6) In the future, ACTA's scope could also be easily expanded through the "ACTA committee". The latter will have authority to interpret and modify the agreement after it has been ratified, and propose amendments. Such a parallel legislative process, which amounts to signing a blank check to the ACTA negotiators, would create a precedent to durably bypassing parliaments in crucial policy-making, and is unacceptable in a democracy. This alone should justify that ACTA be rejected.
Sorry Mark, but you're not seeing the big picture here.
Let me start with points (4) and (6).
DeleteYou seem to say that ratifying this treaty will mean that the EU will no longer be able to reform copyright and patent law, and that the Committee will have the authority to modify the agreement even if the signatories do not agree. I think you're wrong about this for two reasons:
- Article 41, Withdrawal: A Party may withdraw from this Agreement by means of a written notification to the Depositary.
The withdrawal shall take effect 180 days after the Depositary receives the notification.
- Article 42, Amendments: Any amendment shall enter into force ninety days after the date that all the Parties have
deposited their respective instruments of ratification, acceptance, or approval with the Depositary.
It seems that an amendment requires unanimous approval, and in any case, one can still withdraw from the treaty any time that party wishes.
Point (5): True, you have a valid point, but at least it enhances co-operation and sharing of information between the other participating countries in fighting counterfeit products.
DeleteAs for your other points, I cannot see how non-profit sharing constitutes "indirect economic advantage". But in any case, it's not ACTA which makes what you're sharing illegal or not. If it's copyrighted, it already is illegal to do it. The debate then should be: should the Internet be a free-for-all world, where the piracy rules in the physical world no longer apply?
DeleteAbout points (4) and (6),
DeleteReferring to Article 36.4 - "All decisions of the Committee shall be taken by consensus, except as the Committee may
otherwise decide by consensus. The Committee shall be deemed to have acted by consensus on a matter submitted for its consideration, if no Party present at the meeting when the decision is taken formally objects to the proposed decision."
So, there is a legal loophole to stop the provisions in Articles 41/42 at any point in time.
Referring to Article 36.6 - "The Committee may amend the rules and procedures." So there's no limit to the power the Committee has to totally amend the procedures in Articles 41/42. Don't you get the feeling that these clauses are there for a reason? That being to look "ok" until it is ratified?
This is undemocratic big-government at its best.
Well, if I buy a book, read it, and lend it to you to read - it's a non-profit sharing. However, the fact that you did not BUY the book, constitutes, under ACTA, as "indirect economic advantage", punishable by law. The ACTA signatories will be encouraged, through ACTA, to punish this "illegality".
DeleteThere's a different between "illegal", whilst not imposed on the sharing scenario for obvious practical reasons, and having a treaty, longer than the US constitution, about it!
As for the issue on drugs:
DeleteThere are serious health risks associated with ACTA, especially in the developing world. In this case, Europe pushed strongly to include patents under ACTA (something the US actually preferred to leave out). This has complicated matters for some countries. Under existing international agreements, countries can ignore pharmaceutical patents to deal with health emergencies. That is, if you have an outbreak and need a drug that pharmaceutical companies are unwilling to supply at a reasonable price, governments can break the patent and produce their own. That becomes much more difficult under ACTA, which could be a real threat to health around the globe.
Similarly, there are very reasonable concerns that ACTA will be used to crack down, not on actual counterfeit medicines, but on "grey market" drugs -- generic, but legal, copies of medicines. Some European nations, for example, already have a history of seizing shipments of perfectly legal generic drugs in passage to somewhere else. For example, say that a pharmaceutical company in India is shipping drugs to Brazil that are legal in both countries. However, those drugs violate a patent in Europe. If, during transit, those drugs pass through Europe, customs agents may seize them. That's already been happening, but the fear is that there's greater power to do so under ACTA.
One other thing...something that affects me VERY VERY directly (since you mentioned that it won't affect open source, when the largest open source foundation on the planet argues against).
DeleteThe Free Software Foundation (FSF) has published "Speak out against ACTA", stating that the ACTA threatens free software by creating a culture "in which the freedom that is required to produce free software is seen as dangerous and threatening rather than creative, innovative, and exciting." ACTA would also require that existing ISPs no longer host free software that can access copyrighted media; this would substantially affect many sites that offer free software or host software projects such as SourceForge. Specifically, the FSF argues that ACTA will make it more difficult and expensive to distribute free software via file sharing and P2P technologies like BitTorrent, which are currently used to distribute large amounts of free software. The FSF also argues that ACTA will make it harder for users of free operating systems to play non-free media because DRM protected media would not be legally playable with free software.
http://www.fsf.org/campaigns/acta/
Personally, I am holding anybody who supports ACTA as in breach of my individual legal rights.
Andrea, I've not been reading about ACTA, but if it respects current fair dealing exceptions to copyright rights lending should be ok.
ReplyDeleteIn reply to Mark's understanding of "fair process", Mark, read this: http://www.iptegrity.com/index.php/acta/707-acta-does-the-european-commission-know-fair-process
ACTA is the basis on which treaties like SOPA and PIPA will be based. It sets out minimum thresholds. However the minimum thresholds in it are very vague. An attempt to counter such vagueness with specific clarifications to be included in the treaty (especially with regards to ISP's and patents) was shot down in the European parliament by the EPP and the ECR.
ReplyDeleteThe aim of ACTA may be a good one but over here we are opening a Pandora's box without any proper safeguards in place
Is it implemented in the US yet?
ReplyDeleteNo, it will be implemented once all parties sign it and ratify it.
Deleteok i been wondering this for a while now i know Obama signed it in October and thought it would be put into effect once he signed it
DeleteI have to admit that you have made some very valid points here which I did not think of and I was not aware of. It seems that there is a degree of vagueness, especially in the part of ACTA regarding the Digital Environment, which without proper safeguards can be a concern. And even though it is nothing near the doomsday catastrophic legislation some videos and discussion boards painted it out to be, it still lacks proper consultation with the affected parties.
ReplyDeleteSo even though I missed out on the protest this morning, my name is still on the online petition.
A very interesting read...
ReplyDeletehttp://zine.openrightsgroup.org/comment/2012/10-myths-about-acta
Cheers for the heads-up Mark. I don't have time right now to join this healthy discussion going on but I'm glad I am not alone in seeing beyond the marketing techniques of the anti-ACTAvists.
ReplyDelete