Is the EU IMCO Committee Confused on ACTA?

With ACTA grabbing headlines around the world, it is interesting to note that counterfeiting and piracy was discussed today in the Committee on Internal Market and Consumer Protection (IMCO) of Europe.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

A parliamentary document shows (PDF) that the issue of piracy, counterfeiting and ACTA was brought up in the IMCO today. The comments made were interesting to say the least. Here’s one section of the document:

The growing value of IPR is an indicator of success. However, it also makes them attractive to counterfeiters and pirates, who are often well financed and have become organised, highly skilled entrepreneurs operating on an industrial scale. These infringers make full use of advances in technology and trade, adopting modern business models to control the production, distribution and sale of illicit goods across borders and continents. The internet is one such tool that is being used to drive a worldwide market in infringing products, which is stifling innovation and threatening jobs.

In Europe, counterfeiting and piracy have a dramatic and damaging effect on business and they have the potential to become even more problematical due to the recent economic downturn and the growing range of fake products being sold. While luxury goods, fashion, music and film products have traditionally been targeted, today counterfeiting and piracy affect a wider variety of mass consumption goods such as foodstuffs, cosmetics, hygiene products, spare parts for cars, toys and various types of technical or electrical equipment.

This has resulted in risks to the health and safety of European citizens. In particular, the increase in fake medicines is of growing concern.

Now, it sounds like internet related issues are being rolled in to physical piracy which are most often like the differences between night and day. Shortly after, the issue of ACTA was brought up:

At global level the Commission has developed a long-term strategy for the enforcement of IPR in third countries. In the framework of this strategy, a list of “priority countries” has been put together and this is regularly updated. Other major initiatives concern negotiations on an Anti-Counterfeiting Trade Agreement (ACTA) and an EU-China Action Plan to increase customs cooperation on protecting IPR. In addition to this, the Commission has launched its China IPR SME Helpdesk. This provides SMEs with the business tools they need to develop their IP rights and manage related risks.

So what does the commission think about when it comes to cases revolving around the internet?

Counterfeiting and piracy severely damage trust and confidence in the trade of goods and services, in particular on the internet or across borders. For business this can result in the loss of opportunities. For consumers, counterfeiting could cause a reluctance to make the best use of new distribution channels, or to take advantage of bargains throughout the Internal Market.


As a first example, the Commission has launched a stakeholders’ dialogue on the sale of counterfeit goods over the internet. While the internet is not in itself the source of counterfeiting, it has nevertheless become an important vehicle for the sale of fake goods world-wide. Its global reach and accessibility, the possibility for traders to remain anonymous and for offers to be placed and withdrawn instantly has made it one of the most attractive tools for the sale of counterfeit goods.

Brand owners and internet companies alike have recognised this and have committed themselves to developing a collaborative way forward. Consequently, the Commission has organised a structured dialogue between stakeholders to facilitate mutual understanding and to find solutions that will be in the interests of all concerned. A series of meetings have already taken place to address specific issues relating to the sale of counterfeit goods over the internet. Further meetings have been scheduled before the end of the year, which could lead to a Memorandum of Understanding, dealing with issues such as prevention, identification and removal of infringing offers (e.g. Notice and Take-Down procedures) and sellers from internet platforms. However, if voluntary arrangements cannot be agreed, the Commission will need to consider legislative solutions, in particular in the context of the IPR Enforcement Directive.

What is striking in all of this is how the comments are trying very hard to focus on physical piracy, bootlegging and counterfeiting, yet issues like ACTA and notice-and-takedown procedures keep getting inserted as if such issues were restricted solely to the sale of counterfeit goods and bootlegging. Anyone with any knowledge on file-sharing would very likely know the difference between downloading a movie for free and taking a movie, burning and stomping thousands of copies and selling it on the streets or on eBay. It’s a big thick line and few respectable file-sharers cross it.

It’s unfortunate that when one reads this, it doesn’t exactly instill confidence for those who know a thing or two about ACTA. What is known in ACTA thanks to leaked information is that policies like a three strikes law are in there. That means if you are accused of copyright infringement three times whether commercially or non-commercially, you would have your connection terminated. This is just one of the many more hairy provisions in the treaty.

What something like this does highlight very clearly was that it was a very big mistake roll non-commercial infringement in to commercial bootlegging and counterfeiting. Had ACTA actually lived up to its name and dealt with matters strictly related to actual counterfeiting and not non-commercial infringement, the outcry would be minimal and, who knows, ACTA might have been finalized by now. The only thing that is related to the internet that would have been reasonable in ACTA would be that any website that sells infringing material would be targeted. Again, strictly commercial related enforcement.

Unfortunately, what we have is those in power confused on the topic and perhaps inadvertently rolling commercial piracy with non-commercial infringement as one and the same when it is perfectly clear that there’s a huge difference. There’s really nothing in this document that convinces me that the committee understands the difference while discussing the issue of piracy.

Drew Wilson on Twitter: @icecube85 and Google+.

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