Meet ACTA: PIPA and SOPA’s Big Brother

 

Last week, online activists took to the streets in New York and San Francisco to protest SOPA and PIPA, convincing the U.S. Congress to shelve the bills in the face of overwhelming opposition. This week, protesters are filling the streets of Warsaw and other cities across Poland to speak out against another, even more dangerous threat to the open Internet and human rights — the Anti-Counterfeiting Trade Agreement (ACTA). Negotiated in secret by a handful of countries, ACTA seeks to establish new international standards on the enforcement of intellectual property.

 

ACTA goes far beyond the U.S. bills in its scope and reach. If you were worried about the ramifications SOPA and PIPA would have on free speech in the United States and the subsequent chilling effect around the world, pay attention — ACTA promises to inflict far more damage on a global scale. ACTA has managed to sneak by virtually unnoticed by the international community, where the treaty has already been signed by many of the 39 partner countries, including the United States, Canada, Australia, Japan and South Korea. On Thursday, January 26, 22 member states (excluding Cyprus, Germany, Estonia, Slovakia and the Netherlands) of the European Union, led by Poland, signed the controversial agreement. However, all is not lost. If the European Parliament votes down the ACTA treaty, then the whole thing falls apart and it’s back to the drawing board for those behind this legislation.

 

So what makes ACTA so controversial? ACTA seeks to curtail online copyright infringement by putting the interests of rightsholders ahead of free speech, privacy and other human rights. While we support the rights of creators, these draconian approaches to the enforcement of copyright in the online environment will not only reap collateral damage on the open Internet and human rights, but are ineffective in confronting the issue at hand. As the international human rights community argued in a letter opposing PIPA, “[E]nforcement should not come at the expense of free speech or due process.”

 

ACTA, however, extends far beyond copyright, and includes everything under the umbrella of “intellectual property,” including patents, trademarks and the like. This means the scope is much wider, and will have serious repercussions, particularly for European signatories, from a variety of perspectives. These include, but are not limited to, fundamental rights, access to medicines and innovation.

 

 

 

ACTA will threaten human rights such as freedom of expression, access to information and privacy. Its references to “cooperative efforts” by ISPs and states to enforce criminal and civil law in the online environment would promote enforcement measures outside of the rule of law, where the scale and extent of such enforcement measures will be up to private companies.

 

ISPs, in order to take “preventative measures” to prevent copyright infringements, would also be required to carry out surveillance of their networks and implement more intrusive means of identifying alleged infringers, such as wide-scale monitoring of the communications via “deep packet inspection,” enabling gross violations of user privacy.

 

Worse still, the final wording of the agreement, whose meaning won’t be clarified until after ACTA is ratified, is vague, meaning it can be interpreted in ways which would criminalize large numbers of citizens for trivial offenses. A leaked draft of an early version of the agreement gives draconian measures, such as the “3 strikes you’re out” rule, an example of some of the sanctions that private companies would be free to impose on alleged infringers.

 

 

ACTA goes far beyond the TRIPS Agreement, and would restrict access to medicines. As it lacks the safeguards that are included in TRIPS, it would not ensure a proper balance in the enforcement of intellectual property rules. This will delay generic competition and endanger the ability of governments, particularly in developing countries, to adopt innovation policies that dissociate the cost of research and development from the price of products. Essentially, it could prevent life-saving medicine from being distributed in countries that cannot afford the cost of non-generic drugs.

 

 

Bearing in mind that innovation, such as software development, often takes place in legal "grey zones," it appears inevitable that ACTA would also prevent new digital and other industrial initiatives due to the fear of high financial penalties and criminal measures in cases of unintentional breaches of intellectual property. The harsher fines will create disincentives for business startups, who cannot afford to fight litigation. Large competitors will also have a significant advantage because they have greater capacity to implement the policing requirements under ACTA.

 

The way in which ACTA was negotiated has robbed it of both democratic credibility and legal clarity. The negotiations took place behind closed doors, bypassing established multilateral forums like the WTO. Moreover, the agreement creates an unelected “ACTA Committee” which will be responsible for the implementation and interpretation of the agreement. The committee will even have the ability to propose amendments to ACTA without any measures to ensure public accountability, and outside of state governments and the United Nations.

 

And, like SOPA and PIPA, ACTA legitimizes harsh and ineffective mechanisms which restrict human rights under the guise of combatting piracy and protecting intellectual property. There is a very real risk of countries proposing “copycat legislation”, which would see these dangerous provisions included without adequate safeguards, such as fair use provisions, as we saw in Colombia in the case of Ley Lleras.

 

 

No. While Access absolutely believes artists should be compensated for their work, the content industry is taking the wrong approach. From the baseless stats about losses from piracy, to false claims about job creation, to a debunking that the proposed methods of enforcement would be effective, suggests that draconian, excessive laws like SOPA, PIPA or ACTA are not necessary, and would in fact do more harm than good. As dozens of international human rights organisations, including Access, wrote in a letter opposing SOPA, “censoring the Internet is the wrong approach to protecting any sectoral interest in business.” It’s also worth pointing out that for all the lobbying that the MPAA has done around this legislation, Hollywood had their best year ever last year, preceded by their second best year, preceded by their third best year, all while the rest of the world suffered through an economic recession.

 

Furthermore, as the international human rights community argued in a letter against PIPA, “We must remain conscious of the fact that the Internet is a key enabler of human rights and innovation, and decisions over its governance should not be made hastily and without full consideration of collateral consequences.”

 

What we can learn from PIPA/SOPA is the offline power of the online community. Internet regulation is no longer a niche issue discussed only by “techies” and “nerds.” Last week, nearly 115,000 sites blacked out to protest SOPA and PIPA. From New York City to Warsaw people are actually taking to the streets to protest rights-abusing copyright law, showing how much these once obscure issues have come into the mainstream. Users from over 150 countries have signed our petition calling on Members of the European Parliament to reject ACTA. With the way things are heading, we may have a real shot at convincing the European Parliament to vote no on ACTA later this year, effectively dismantling this regulation by sending it back to the drawing board!