Pirate Party UK

ACTA analysis

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This page is the personal analysis of the content and effect of the Anti-Counterfeiting Trade Agreement (ACTA) by Duke. In time it will be moved to a more permanent home. This version is intended for internal Party use only. No guarantees as to its accuracy are given, all opinions are that of the author.

The full text of ACTA can be found here.

La Quadrature du Net's page on ACTA (found here) is also worth a read.

Marietje Schaake MEP commenting on ACTA on reddit, including information about procedures and dates here.

Update from Amelia Andersdotter MEP on progress through INTA committee here (in Swedish).

Key Dates:

  • May: Vote in INTA committee
  • July: Vote in full Parliament


Contents

Introduction

ACTA claims to be a trade agreement, aimed at setting a minimum standard for the enforcement of copyright and related rights, trade marks, patents etc.. It was negotiated, mostly in secret, between a number of countries and the EU, over several years, despite wide-spread criticism, including from the European Parliament. So far, the US, Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea have signed the agreement. The European Council approved ACTA in an agriculture and fisheries meeting in December (details here) and it is expected to be signed by the EU on Thursday, before the European Parliament has a chance to vote on it.

The Treaty

The treaty is split into 6 chapters. Chapter 2 contains the main legal provisions, with chapter 1 providing definitions and general pointers, chapters 3 and 4 concern enforcement practices (i.e. developing expertise and inter-departmental co-operation, along with raising public awareness of the "detrimental effects" of infringement) and international co-operation. Chapter 5 and 6 establish an ACTA Committee to supervise the treaty and lay out various procedures including a (rather worryingly) one by which the committee can amend the treaty to any extent, provided no signatory raises formal objects.

As with most agreements like this, it begins with a statement of principles etc., the first of which demonstrates the (arguably flawed) attitude behind the treaty: "Noting that effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally."

Chapter 1

Art 2(1) makes it clear that this is a *lower* bound on enforcement. Parties (the states involved) must reach the standards set, but are free to go even further. This attitude is reflected throughout the treaty. While some provisions are optional (prefixed by "may" rather than "shall") many of these relate to limitations or defences.

Art 3 makes it clear that this is about enforcement only, and does not add to the various types of "IP" or their scope.

Art 4 protects Parties from disclosing any information that is unlawful to disclose or confidential (to the extent that its disclosure would be contrary to the public interest or would prejudice "legitimate commercial interests").

Chapter 2

Section 1 - General Obligations

Art 6(1) imposes a general obligation on Parties to ensure that "effective action" is permitted against "any act of infringement", and explicitly includes "expeditious remedies" for both prevention of infringement (although I'm not sure how one can remedy something that hasn't happened) and remedies to deter infringements.

6(2) requires that any procedures must be "fair and equitable", but must not be "unnecessarily complicated or costly" or involve "unreasonable time-limits or unwarranted delays." - i.e. they must be simple, cheap, fast, but not with short deadlines.

6(3) Introduces the concept of proportionality (a basic principle of EU law, among others) between the various aspects, rights and interests.

Section 2 - Civil Enforcement

This does not have to apply to patents, seems to only apply to physical goods(?).

Art 7 Sets up the principles of civil procedures for IP enforcement, including:

Art 8 injunctions, to stop or prevent infringement, including against third parties. Unless the government has approved of the infringement, in which case, remuneration is enough, and

Art 9 damages, that are "adequate to compensate for the injury.. suffered". In determining damages, any "legitimate measure of value" the right holder ("RH") provides can be considered, including "lost profits", the value of the goods or services and the retail prices. Damages must also be able to include an account of profits attributable to the infringement, and again the above measures of damages can be presumed. On top of this, there can be "pre-established" damages (i.e. not related to the specific infringement or any actual loss) and any "additional damages". Art 9 also requires the authority to award costs to the winning party. And

Art 10 destruction of any infringing goods, which must be done (apart from in exceptional circumstances) without compensation. This also includes the authority to destroy any "materials and implements" which were mainly used in the manufacture of such goods. These may be done at the infringer's expense.

Art 11 requires that in civil proceedings the court (or similar) has the authority to obtain all sorts of relevant information from the alleged infringer, and which can then be given to the RH.

Art 12 establishes "ex parte" (i.e. with only the claimant present) provisional measures to prevent infringements, gather and preserve evidence. However, it does require the option of getting RHs to provide some sort security and/or compensation in the event that the their allegations are proved wrong.

Section 3 - Border Measures

This explicitly does not include borders where substantial all controls have been removed; i.e. between the EU countries. As with civil enforcement, it does not apply to patents.

Art 13 imposes the obligation to have "effective border enforcement " of IP rights, but in way that doesn't discriminate "unjustifiably" between different types, or creates barriers to legitimate trade.

Art 14 makes it clear that border enforcement includes small consignments of goods, but allows for the option of excluding "small quantities" of "non-commercial" goods in "personal luggage". However, non-commercial is not defined.

Art 16(1) applies these border measures to any goods going into or out of the country. 16(2) then allows for the option of applying them to goods merely passing through the country on the way to another (which could include countries with different IP laws).

Art 17 sets up a way for RHs to apply to have goods seized at customs, to be checked for possible infringement. Interestingly, while it allows (but does not require) the authorities to "deny, suspend or void" any application where the procedure is being abused, it imposes no sanctions against such an abuser.

Art 18 requires the authority to demand security from a RH upon a request, but this could be limited to an agreement to cover the defendant's losses due to the delay.

Art 20 requires that any infringing goods be destroyed (or disposed of), and in the case of trade mark infringement, merely removing the false trade mark is not sufficient.

Art 22 sets out a long list of different types of information related to the defendant that the authorities must (or may in some cases) hand over to the RH, including descriptions, quantities, names and addresses of those involved.

Section 4 - Criminal Enforcement

Art 23 imposes criminal procedures and penalties for "wilful" trademark or copyright infringements, on a "commercial scale", which includes "commercial activities for direct or indirect economic or commercial advantage" (which seems potentially broader than existing EU or UK law). Art 23(3) allows for the option of having an offence for recording films in cinemas (which isn't explicitly criminal in the EU or UK).

Art 24 requires the option of imprisonment and fines (although not necessarily both in the same case) for infringement, that are "sufficiently high" to act as a deterrent.

Art 25 requires broad seizure powers for both goods, materials for making them, evidence of their existence or assets obtained "directly or indirectly" through the infringement. It also requires the authority to destroy all such stuff (explicitly without any compensation to the infringer). It also allows (but does not require) the seizure of assets of a similar value corresponding to the above.

Section 5 - Enforcement ... in the Digital Environment

This apparently making the common mistake of confusing "digital" with "online."

Art 27 contains a range of provisions applying the civil and criminal enforcement measures to infringements that take place "in the digital environment", again mentioning remedies to prevent and deter infringement. These measures are broad and must be aimed at "means of widespread distribution" of infringing content.

Art 27(3) requires Parties to "endeavour to promote cooperative efforts" within businesses to address issues of trademark and copyright infringement, and 27(4) allows a Party to provide a means by which a RH can obtain information from an ISP needed to identified a subscriber of an account. 27(5) expands the civil and criminal enforcement to the "circumvention of effective technological measures" to prevent copyright infringement, including remedies against circumvention and offering to the public something to aid in this, and remedies against the production, importation and distribution of something "primarily designed or produced" for circumvention, or has a "limited commercially significant purpose" other than that.

Art 27(7) takes the anti-circumvention provisions further by requiring legal protection for "electronic rights management information" - that is information attached in some way to an item, where the information includes identification of the work, its author(s), producer(s) or right owners, or terms and conditions of its use. This includes making it illegal to remove or alter such information, or to distribute or communicate works knowing that such information has been removed or altered. Finally Art 27(8) allows for (but does not require) "appropriate limitations or exceptions" to the measures in this section.


Issues with the text of ACTA

  • This is supposedly a mere trade agreement (hence being negotiated secretly, by the various governing bodies, without democratic involvement), and yet it has the potential to significantly alter not only civil law, but criminal laws in the Parties (something even the EU is reluctant to do; there is no criminal copyright infringement under EU law).
  • The treaty can be altered at a later date by this new oversight body (separate to any of the existing one; the WTO/WIPO, UN, EU etc.), provided no Party formally objects, allowing, in theory, binding changes to domestic laws with no democratic oversight.
  • There are claims that the treaty will not require any changes to EU (or UK) law, in which case, why has significant time and effort been expended in negotiating and creating the treaty?
  • The text imposes many requirements, while insisting that they not create "barriers to legitimate trade/activity", have "safeguards against... abuse" and "preserve fundamental principles such as freedom of expression, fair process, and privacy" (these parts were likely included by the EU, as they are legal requirements of actions of the Commission). In the context, this would seem to be an impossible task, given how difficult it is to differentiate legitimate and lawful activity from infringing activity. The latter can also involve exercising freedom of expression and similar principles (hence the limited "public interest" defence to copyright infringement in the UK).
  • While the civil and criminal provisions may not seem to go beyond current UK law, the government is already committed (through implementing the recommendations of the Hargreaves Review) to limiting some of these. ACTA would put a further limit (beyond what EU law already does) on how much the law can be reduced in these areas, with scope (as mentioned above) for them being made even worse.
  • There is enough uncertainty in the wording to enable lobbyists to use this treaty to suggest that the UK is obliged to extend enforcement procedures, beyond that imagined by any Parliamentarian when voting for (or against) it.
  • The Treaty requires expanding criminal infringement to any infringement on a "commercial scale". Under existing UK law (s107 CDPA), the scale required is one that is "prejudicial" to the copyright owner, suggesting that it is based on the copyright owner's loss, rather than the infringer's gain.
  • The broad definition of "commercial scale" given seems to not require any financial benefit (either direct or otherwise), but any financial benefit could be enough (such as the benefit of not having to pay for something).
  • Criminal enforcement is required for "aiding and abetting", which has the potential to be broad enough to cover merely linking to a place where infringing content could be obtained.
  • Consider, for example, a site like Wired.co.uk incidentally linking to, or mentioning a website with infringing content (which, in the UK would include sites such as Wikipedia, YouTube, aside from obvious examples); given the "aiding and abetting" provisions, and the definition of "commercial scale", they could find themselves facing criminal liability.
  • There is much focus on punishments (particularly the compulsory option of imprisonment) not simply being proportionate to the offence, but also being sufficient to form a deterrent. Whether such punishments are suitable or not is a matter for society (through Parliaments) not through international treaties. There is also considerable emphasis of "remedies" for "preventing" potential infringements, which could have a significant "chilling effect" on websites based on user-generated content, forcing sites to take active measures to stifle expression. This would also seem to involve punishment *before* any unlawful action had occurred.
  • The methods of calculating damages are a step in the wrong direction. Rather than requiring (or even considering) any "actual loss" sustained, the (often exaggerated) "lost sale" figures, or mere retail prices are suggested, along with unspecified "additional damages".
  • The measures on circumventing technological measures, while not being significantly worse than existing law, would prevent any exceptions to allow legitimate uses of content protected by DRM (such as ripping a DVD or CD, were format-shifting to be made lawful). Under existing law there is no such exception (aside from an application for permission to the government) but one could not even be created under ACTA.
  • The measures on "electronic rights management information" seem ridiculously broad, potentially making it an offence to merely rename a file on a computer.
  • While not compulsory, the border controls on in-transit goods (those passing through a Party while going to/from others) could have a significant detrimental effect on the use of UK facilities and services for international trade. There have already been some cases of medicines travelling from non-EU countries through the EU (such as supplies from India or South America to parts of Africa) being seized for patent infringement, despite being perfectly legal in both end countries, and no conceivable loss within the EU country. These controls would only extend this problem.

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