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Anti-Counterfeiting Trade Agreement (ACTA) Signed by United States

The United States and other countries signed the Anti-Counterfeiting Trade Agreement in Tokyo on October 1, 2011.  Those attending included representatives from Australia, Canada, the European Union, Japan, Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the United States; although not all countries have signed the agreement as of now.

Understanding ACTA

ACTA is viewed by many as the most important global intellectual property agreement concluded in more than a decade.   It establishes new norms across a range of intellectual property rights, with an emphasis on heightened penalties, more summary proceedings, more extensive border enforcement, and the introduction of obligations for third parties.  Despite its name, ACTA is not limited to provisions addressing counterfeit trademarked goods.  ACTA covers all intellectual property rights included in the World Trade Organization’s Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS) and includes important new obligations in the area of copyright.

ACTA goes beyond existing multilateral agreements in significant ways.  It increases penalties for intellectual property infringement by requiring, for example, courts in civil cases to provide for more expansive damages and by obliging states to extend criminal liability for copyright piracy and trademark counterfeiting to commercial activities that have merely “indirect economic or commercial advantage.”  However, it is important to note that ACTA does not change U.S. law in this area.

ACTA and Higher Education

The ACTA agreement has been mired in controversy from the beginning due to secrecy imposed by the U.S. and concerns that it may not uphold European Union rules on data privacy.  However, public interest groups, consumer electronics industries, and others exerted sufficient pressure and succeeded in making the final ACTA text much better than earlier leaks indicated.  Here are some major improvements, which are significant for operators of our campus networks, as noted by Public Knowledge:

  • The provision that proposed to criminally punish ordinary users (think college kid downloading music) with fines, jail time, seizure of computers, etc., was significantly scaled back as the negotiation process moved on and finally eliminated in the final text.
  • The provision that required all ACTA countries to hold third parties, such as ISPs and consumer electronics manufacturers, liable for their customers’ infringement was eliminated.  This provision, as drafted, was inconsistent with U.S. law and would have required changes to this complex and evolving policy space.
  • The provision that required countries to institute safe harbors for ISPs from their customer’s infringement was eliminated.  While the idea of providing ISPs with a safe harbor is a good one and facilitates the development of platforms and services on the Internet, the way in which ACTA would have required these safe harbors was not good. It lacked safe guards for users that are contained in U.S. law.  Further, it could have provided the excuse for measures such as three strikes and deep packet inspection.
  • The DRM provisions of ACTA were improved significantly.  Earlier leaked drafts had called upon countries to prevent circumvention of DRM, treat them as both civil and criminal offenses, and consider them illegal even when there was no underlying attempt to infringe copyright.  Furthermore, these drafts had not acknowledged that circumvention could be done for lawful purposes.  The final text overcomes these deficiencies and gives countries flexibility in how they implement DRM provisions.

Still, ACTA implementation bears watching.  The agreement will be open for signature until May 1, 2013.  EDUCAUSE will continue to monitor and report on developments.