Vanessa Cross
Feb 22, 2012

ACTA: How an anti-piracy treaty offers less opportunity for public input

The Anti-Counterfeiting Trade Agreement (ACTA) is still on the move across the globe. ACTA has a similar aim to the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) twin bills that were recently halted in the US Congress due to an effective showing of public discontent.

The US signed ACTA on October 2011, according to the Office of the United States Trade Representative. The US Federal Trade Commission's website was hacked by Internet activists on or about 12/16/12, replaced with a German-language anti-ACTA video, according to AP reports. A common refrain among the commentators is a concern that ACTA has been in the works for years and seems to be a back-door effort by national legislators to pass increased IP regulations without going through the more public national legislative process that allows for debates regarding regulatory content. While the SOPA-PIPA twin bills that were moving through the US Congress were halted in great part by public activism, ACTA's anti-piracy regulations would come into effect under the rubric of international trade agreements.

One difference between international treaties and national legislation is that the former gives a greater opportunity for full public input and debate among the national citizens in the initial development of a bill's provision. International treaties are signed by authorized national representatives and can then be introduced before national legislators for ratification. Ratification is the process necessary for an international treaty to become binding among national citizens. For example, while the US signed the Kyoto Protocols to the United Nations Framework Convention on Climate Change on November 12, 1998, the international treaty was never entered into national law because it was never ratified by the US Congress. 

“ACTA is aimed at counterfeiters and pirates involved with commercial scale activities on the Internet, not the general users,” said a spokeswoman for the International Trademark Association to the BBC. “Too many criminals profit from selling counterfeit goods on the Internet at the expense of consumers' health and safety,” said a spokeswoman for the International Trademark Association (ITA), in a recent BBC report. ACTA has a just aim. It seeks to combat the global online trade in counterfeit goods and sharing of copyright content such as through peer-to-peer file sharing. In addition to the ITA's support, the Motion Picture Association of America has been among the strongest supporters of increased government protection of online content.

The statistics, however, do not really gel with the push for increased regulations. The International Federation of the Phonographic Industry (IFPI) -- the international version of the US-based Recording Industry Association of America, reports that consumer consumption of paid subscription services for online content rose 65 percent to 13.4 million during 2011. IFPI also reports that US Internet users on peer-to-peer file-sharing services has dropped to 9 percent in 2010, from its 2007 level of 16 percent. Additionally, digital music sales revenue rose 8 percent worldwide.

“I don't find it good in its current form,” said Martin Schulz, European Parliament president, recently discussing ACTA on German television network ARD. The ACTA treaty has been signed by 22 EU member-nations, according to the BBC. The UK has signed ACTA. Germany has held off from authorizing signing of the trade agreement. ACTA is an international trade treaty and has been introduced to the European Parliament under the authority of the EU's international trade treaties. It is set to be debated in the European Parliament in June 2012. Similar to a federal system of governance, if the European Parliament approves ACTA, each member-nation must then have it ratified by national legislators for it to bind the citizens of each nation.

Significant public protest has erupted across Europe in reaction to ACTA. This includes public marches in Bulgaria, Czech Republic, Germany, Hungary, Lithuania, Poland and Romania. Poland had large protest numbers and Internet activist disrupted several government websites. The Czech Republic, Slovokia and Poland have signed ACTA but delayed ratification proceedings on ACTA before the national legislators. Outside of Europe, ACTA signatory countries include Australia, Canada, Japan, Morocco, New Zealand, Singapore and the US.

While there are differences between SOPA, PIPA and ACTA, all of these regulatory efforts aim to provide greater global protection to IP holders from online piracy. In the US, however, the statistics do not support a proposition that current legislation is not sufficient. Balancing IP-holder rights against those of individual users -- who are concerned with censorship and unfair enforcement -- and online businesses such as internet service providers -- that are concerned with third party enforcement and potential liability -- is now a global and a national challenge that must effectively balance the interests of all parties. Above all, however, the statistical needs must justify the ends, and the means to those ends must be equitable, transparent and involve the public.

Legal Disclaimer: This article is for information only and should not be used as a substitute for legal advice.