Anti-Counterfeiting Trade Agreement overview

For the effects on software patents, see: ACTA and software patents.

Can you help? This needs to be reviewed in light of the November 2010 publication of the proposed-final text

The Anti-Counterfeiting Trade Agreement (ACTA) is a proposed international trade agreement. It is primarily being advanced by the USA, EU, Japan, and Switzerland.

(ESP Wiki hosted two big leaks in early 2010, but the official text has now been published.)

Despite the name, this agreement covers much more than counterfeiting.

Versions

• 2010-11-15: Official: 15 November text, published by USTR (diff with Tokyo round)
• 2010-10-08: Official: October text, published by USTR "Tokyo Round" version
• 2010-07-13: Leak: the "July 1st" text, "Lucerne Round" version
• 2010-05-xx: Official: April text, "New Zealand Round" version
• 2010-03-22: Leak: 201001 acta.pdf as text - full text
• 2010-03-01: Leak: ACTA-6437-10.pdf as text - almost complete text plus notes on which parties want what
• 2010-02-25: Leak: Dutch original: Dutch govt report on Mexico Round negotiations (English translations^[?]: Google, bing translator)
• 2008-05-22: Leak: ACTA proposal published by WikiLeaks from 2007[1] - NOTE: those links have been down since mid-2009. As of Nov 2010, they're still down.

What's in it?

(see ACTA and software patents)

• Intermediaries, such as ISPs, can be required to remove or block files at the request of the holder of any copyright, patent, trademark, or any other form of "intellectual property", without a court case
• ISPs can be forced to hand over identifying information about Internet users to right holders, without a court case
• Circumventing or removing a "technical protection mechanism" becomes illegal

Participating countries

Australia, Canada, the European Union, Japan, Jordan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, the United Arab Emirates, and the United States (US). With 27 countries represented by the EU, there is a total of 39 countries involved in ACTA.

Government bodies supporting, criticising

Expressing full support:

• Barack Obama
• European Commission

Expressing criticism:

• European Parliament
• European Data Protection Supervisor

Timeline

(For the various leaks and texts, see above)

• 2010-02-25: leak of 2-page document[2]
• 2008-07-29: Second ACTA negotiating round, 29‑31 July 2008, in Washington
• 2008-06-23: European Commission holds "stakeholder consultation", Brussels
• 2008-06-03: First ACTA negotiating round, 3‑4 June 2008, in Geneva
• 2008-05-22: leaked ACTA proposal published by WikiLeaks from 2007[3]
• 2008-04-14: EU: negotiating guidelines for ACTA formally adopted by the Council
• 2007-11-xx: Australia holds consultations about ACTA participation
• 2007-01-xx: Canada privately circulates secret ACTA discussion paper

Who can approve or reject the final version?

USA

In the USA, the final version could get classified as an "executive agreement", in which case the president can simply sign it. Opponents of ACTA would like it to be classified as a "treaty", which would require a vote (in the Senate? Congress? or both?).

(See also: ACTA's Constitutional Problem, 15 Nov 2010, Pijip)

All other parties

For the other parties, there are two constraints. One is their internal approval process, and the other is their international trade relations. That second issue is even a problem for large economies such as the EU, as described by German patent attorney Axel Horns:

In case the EU Council accepting the result of the negotiations conducted by the EU Commission, the political pressure on the MEPs to accept the Agreement surely will be enormous.

As we recently have seen with regard to the SWIFT agreement, the Parliament most probably will be threatened by prospects of a significant deterioration of U.S. - Europe relations in case of a rejection of ACTA.

New or old

ACTA changes existing law without changing the text. It changes the nature of certain laws, moving them from national legislation which is controlled by Congress/Parliament to an international treaty which would be very difficult to change. ACTA thus chains our laws to the 20^th century and makes mistakes (such as DRM laws) very difficult to review.

People arguing in favour of ACTA sometimes minimise the impact of ACTA by saying that it doesn't create any new crimes or offences. That may or may not be true, but it ignore the above, crucial problem. It greatly broadens the responsibility, investigation, and enforcement of existing crimes and offences.

A lot of requirements of ACTA already exist in the US and the European Union.

(Terminology: in the EU, the set of domains that are currently under the control of the EU institutions is the acquis communautaire.)

Does not require software patents

ACTA makes all patents more dangerous, but it contains nothing requiring signatories to allow software to be patented. From the text of the leaked 25-August-2010 draft, we can see that this is explicitly stated:

ARTICLE 1.3: RELATION TO STANDARDS CONCERNING THE AVAILABILITY AND SCOPE OF INTELLECTUAL PROPERTY RIGHTS

1. This Agreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party's law.

2. This Agreement does not create any obligation on a Party to apply measures where a right in intellectual property is not protected under the laws and regulations of that Party.

Related pages on ESP Wiki

• ACTA and software patents
• ACTA-6437-10.pdf as text (plain text transcription of the leaked files)
• TRIPS
• Criminalising patent infringement is draconian

External links

About the final text

• US trade agency releases final text of ACTA, 16 Nov 2010, Computerworld.co.nz
• ACTA's Constitutional Problem [in the USA], 15 Nov 2010, Pijip
• Final Draft of ACTA Released, 16 Nov 2010, Patently-O

Overview pages

• La Quadrature - public interest group based in France who did a lot of work on improving ACTA
  • Help the European Parliament Oppose ACTA, La Quadrature
• FFII's analysis, FFII
• DigitalMajority.org commentary
• Anti-Counterfeiting Trade Agreement, Wikipedia
• The Anti-Counterfeiting Trade Agreement (ACTA), IP Justice
• November 2009 status - focus is "internet enforcement", by Michael Geist
• A leaked report from the January 2010 ACTA meeting, from the European Union delegation
• Broken links: 2009 leaked draft, [4], from wikileaks (Since late 2009, and as of Feb 2010, this site is offline)
• ACTA (ever) more questions, 23 Feb 2010, Erik Josefsson

Articles

• Michael Geist:
  • ACTA Discussed Internally Months Before Public Announcement, 23 Apr 2008
  • DFAIT's Consultation on the Anti-Counterfeiting Trade Agreement, 1 May 2008
  • Ask First, ACTA Later, 15 Nov 2007
  • Is ACTA the New WIPO?, 24 Oct 2007

European Union

• European Commission's April 2009 summary (tradoc_142745.pdf)
• Resolution collecting signatures of members of the European Parliament, 9 Mar 2010

Questions officially submitted to the European Commission

The European Commission is obliged to respond to questions officially submitted by members of the European Parliament. They have to do so in a certain time limit (six weeks?).

• 25 February 2010 (Mr De Gucht)
• 20 February 2009 (Mr McCreevy)
• 8 February 2010 (Ms Ferrero-Waldner)
• 4 February 2010 (Mrs Ferrero-Waldner)
• 15 September 2008 (Mr Mandelson)
• 12 September 2008 (Mr Mandelson)
• Awaiting response: An MEP asks the European Commission about the timeline, content, and justifications of ACTA - 22 Jan 2010.
• Awaiting response: From Britta Thomsen, January 21st 2010
• 9 Mar 2010: Members of European Parliaments ask when they will receive the ACTA documents

USA

• Anti-counterfeiting agreement raises constitutional concerns, 25 Mar 2010