Earlier this month, we noted that officials working within ACTA are saying that September is when the negotiations will be finalized. Another report has surfaced that seems to confirm these intentions.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
ACTA (Anti-Counterfeiting Trade Agreement) has had quite a roller-coaster of a ride over the years it was being negotiated. Negotiations started as far back as 2007, but we only heard about it part way through 2008 when one of the now earliest versions of the agreement leaked on to Wikileaks. By comparison to before, it must have been nice to work under the total veil of secrecy with no PR backlash working against the negotiators.
Since the leak in 2008, ACTA drew wide-spread criticism. Among the fears of what ACTA would bring were border searches of anyone carrying iPods, cell phones, MP3 players and laptops. The idea that these searches would try to stop people from bringing infringing material across the borders in to other countries.
Another fear was that it would bring in a global DMCA – meaning a law modeled off of the American Digital Millennium Copyright Act. More specifically, it would bring in the worst aspects of the DMCA like the anti-circumvention provisions of breaking digital locks/DRM/TPMs/copy controls/access controls or whatever the name is in a given country. It would thus harm exceptions in the law that would allow people to create using a small portion of a copyrighted work. One example is the US’s Fair Use provisions enshrined in its copyright laws thanks largely to the Betamax case.
An additional fear would that it would bring in a global three strikes law as seen in France. How effective a three strikes law would be in practice is best left for another article, but in short, the prospects are pretty bad that something like that would be enforceable, let alone withstand public scrutiny.
The most striking part is the fact that ACTA dealt with the much broader concept of intellectual property. This concept is way more broader then the concept of counterfeiting as the treaties name implies for the simple fact that counterfeiting deals mainly with the unauthorized manufacturing of physical goods. Put things in the lens of intellectual property and now you are dealing with remixing, copyright infringement (i.e. on the internet), parody and satire, and a whole host of issues that go way beyond knock-off Gucci bags and Rolex watches.
Months since the initial leak, this storm of criticism wasn’t going unheard completely. Negotiators did go on a PR campaign to say how “ridiculous” these claims were that this agreement dealt with dragnet border searches of personal belongings as well as a mandatory three strikes law.
One of the ways officials counteracted these claims was to say that this was not an all-or-nothing agreement. If countries choose not to take certain provisions, they are free not to.
Officials also explicitly denied that there was a three strikes provision buried in the text – one of many criticisms that really drew a storm of criticisms in the first place.
The problem that really crippled their efforts to try and cast away what they claim were just rumors was the fact that the agreement was a trade secret and not meant to be public. So it really did become a “he said, he said” situation, only digital rights activists were in possession with a leaked copy of the draft. Having an official draft text officially posted was not only demanded by several digital rights activists, but over 100 human rights groups all over the world.
I’m willing to bet that it was difficult for spokespersons having to deal with the criticisms of ACTA in public. It’s really a fairly simple exchange of dialogue that pretty much says it all:
Critic: “ACTA would bring in a whole host of very bad things in to the world.”
ACTA: “No it won’t. That’s ridiculous!”
Critic: “I have this leaked draft that confirms what I am saying!”
ACTA: “That draft is wrong, ignore it.”
Critic: “Very well, then can I see the actual text?”
Critic: “Why not? I want proof that the treaty says I am wrong and you are right!”
ACTA: “It’s a secret, so just trust us based on what we say, no matter how many shady companies are involved.”
This is not the kind of conversation anyone wants to deal with in public and public relations because of the levels of absurdity in this alone.
Two long years later, ACTA officially released the draft text on April 20, 2010. Some officials shortly after basically said that now these “ridiculous” claims can be put to rest.
After comparing leaked versions to the official version, some note that the more controversial provisions were merely deleted at the last minute.
After the official release, negotiators were, once again, silent on the matter publicly speaking. Transparency would once again be one of the key pitfalls of the agreement in the first place. Any changes made since would officially be kept a secret, wrapped up in trade secrecy.
That wouldn’t stop the leaks and newer criticisms of the agreement said that file-sharers would be sent to jail because copyright infringement would be made in to a criminal matter rather than a civil matter as has been the tradition for many countries. We never really confirmed this particular criticism, but such criticism does exist.
The Near Collapse of Negotiations in 2010
It seems that there were way more downs than ups in these negotiations and one of the most explosive battles within ACTA was, by far, the differences expressed between the US and Europe in more recent times. In fact, it was a shake-up that threatened the very survivability of ACTA itself.
Signs of strain started to crop up as early as walk away from ACTA, thus crippling negotiations.
Recently, Japanese media confirmed that the intentions are to finalize and sign the treaty sometime in September through a vice-ministerial level meeting. From the report:
Negotiators from the 11 parties namely Japan, the United States, the European Union, Switzerland, Canada, Australia, New Zealand, South Korea, Singapore, Mexico and Morocco agreed in Washington on Aug 20 to wrap up negotiations in Tokyo in late September.
According to the Ministry of Economy, Trade and Industry, the agreement is expected to take effect in 2011 following the completion of necessary domestic procedures in each signatory party.
Under the new framework, production and trade of labels for counterfeit goods will be prohibited and to make the accord effective, they will call on other countries to join the framework, particularly targetting China and Russia where counterfeit products are widely distributed.
This doesn’t mention one last barrier should the Europe and US divide be overcome – the many countries involved actually ratifying the agreement. How many countries and when – or even if – each country ratifies the law remains to be seen.
Still, with the heavy controversy surrounding it and the main problem still being transparency more than anything else, it’ll take a significant amount of effort to garner any support from the populations of various countries. Some even go so far as to say ACT breaks European human rights laws, thus presenting an additional obstacle of trying to make ACTA conform with other laws and international agreements. So even if the agreement is finalized and signed, it’s got a long way to go before such laws many deem broad and draconian will be knocking on various peoples front doors.