A critical look at ACTA

In April the 8th official round of negotiation concerning the Anti-Counterfeiting Trade Agreement (ACTA) is scheduled to take place in Wellington, New Zealand. ACTA is a plurilateral trade agreement that aims to establish international standards on intellectual property rights enforcement throughout the participating countries. The proposed agreement has the potential to drastically alter the landscape of intellectual property in our country and others. Given its potential impact it’s important that  ACTA is carefully considered. This post will draw attention to a few of the criticisms that ACTA has received.

One of the major criticisms concerning ACTA has been the secrecy regarding the negotiations. The agreement has been undergoing official negotiations since June of 2008 but the meetings have taken place under a shroud of secrecy. Much of what we know regarding the agreement has been gleaned from leaked documents. ACTA partners defended the secrecy as being standard practice for the formation of an international agreement, especially given the early stages of its development. But critics have pointed to many examples of other conventions that have been far more open than ACTA.

The bottom line is that many people are understandably uncomfortable with international negotiations  for an agreement that stands to have an immediate and real impact upon their lives taking place in secret. Shouldn’t such an important undertaking be open to public participation? When there is no transparency people begin to wonder what is being hidden. Given the widespread criticism that the leaked portions of the negotiation have been subjected to makes me wonder if the secrecy was a deliberate attempt to conceal what was sure to be a publicly unpopular agreement.

Another part of ACTA that has been heavily criticised is the proposed adoption of a three strikes system. Under the system individuals would lose access to the internet for a period of time based on three allegations of copyright infringement. Many people see the loss of internet access for a house hold based on three unproven, non-commercial copyright infringement is excessive.

An additional problem with a three strikes proposal is that it is potentially very costly for ISP’s to administer. Earlier this year Michael Geist noted a recent UK study which pegged the cost of a single notification at $11.73 for a large internet provider and $32.73 for a smaller provider. This is a major cause for concern. The disparate impact on small and large providers would have an obvious negative impact on completion. Either way, the cost of implementing a three strikes system will fall on the consumer and need to be considered.

Also, some have argued that ACTA provides for the criminalization of copyright infringement and does so in a dangerous way. Essentially criminal investigations and searches will be performed against individuals in the absence of probable cause.

There is no doubt that the protection of intellectual property rights is an important task. ACTA is attempting to address what is a real and serious problem. Nevertheless, when the methods being chosen to combat the problem impact the rights of so many and are being selected under a veil of secrecy, being critical of what is being decided is crucial.