ONLINE CONTROVERSY
The Anti-Counterfeiting Trade Agreement has been the subject of protests and demonstrations in cities across the world. TB&I asks what all the fuss is about.
It was Bob Dylan who implored politicians to “heed the call” of the masses. He asked them not to “stand in the doorway” or “block up the hall”, because, as the song’s title forewarns, “the times they are a-changin’”. Dylan couldn’t have known that one such change would be the way in which his music is distributed and consumed, but his plea to politicians to stand aside to let these changes happen, as many would argue, is still one that they need to hear.
Te Anti-Counterfeiting Trade Agreement (ACTA) is an agreement that should be heeded, according to its proponents, but especially according to its opponents. Tousands of protesters took to the streets in cities such as Berlin, Warsaw and London to demonstrate against ACTA, which was negotiated as an international trade agreement between Japan, Australia, Canada, the EU, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the US.
Te agreement, which is intended to harmonise international standards for intellectual property enforcement, has been negotiated and finalised, as well as signed by eight of
the negotiating
parties. Te EU Council has authorised EU member states to sign it, and so far 22 have done so. Opponents say it will ‘break’ the Internet: its users policed and their opinions censored; its supporters say it is needed to ensure that IP enforcement is harmonised globally.
Maintaining a free and open Internet is of paramount importance to its users. Tey worry that agreements such as ACTA safeguard the rights of IP owners but strip away their own. Gwen Hinze, the director of international IP at the Electronic Frontier Foundation (EFF), says that ACTA “expressly targets the Internet and Internet users”. She says that it gives rights holders broad new online enforcement powers and creates strong incentives for online service providers to take actions that will “undermine Internet users’ privacy and freedom of expression”.
powers
www.worldipreview.com
Hinze adds: “A C T A contains broad in j u nc tio n and
requires countries to have provisional measures to prevent IP infringement. It also establishes criminal penalties for aiding and abetting infringement on a commercial scale. Tere’s concern that
these provisions could be used
to encourage Internet intermediaries to block access to particular digital material or websites, or to filter communications on their networks and platforms. ACTA also contains specific provisions
for enforcement in the digital
environment that include language that is vague and open to differing interpretations.”
A key argument that ACTA’s supporters make is that the agreement does not make many references to the Internet. It primarily deals with harmonising international standards relating to practical enforcement issues, including evidence, damages, seizures, destruction of goods, border measures and criminal penalties, says Marius Schneider, the chairman of the Europe Communities Trademark Association’s (ECTA’s) anti-counterfeiting
committee and
partner and director of the IP practice at Eeman & Partners in Belgium.
He says: “Tere is, contrary to the criticism that is oſten expressed about ACTA, very little that specifically mentions online IP infringement. It’s not an Internet treaty; it’s very much concerned with hard goods in the main provisions.”
ACTA’s Section 5 Article 27 most clearly refers to the Internet. It says: “Each party shall ensure that enforcement procedures ... are available under its law so as to permit effective action against an act of infringement of IP rights which takes place in the digital environment, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringements.”
Tim Cahn, a partner at Kilpatrick Townsend & Stockton LLP, says that this is a broad, general and ultimately indeterminate principle made all the more prominent by the way in which much of the rest of the agreement is so explicitly written.
He says: “I can see that the principle of
requiring effective online anti-piracy measures might be troubling to folks who are inclined to doubt, and may be sceptical in the first instance about, the intentions behind the agreement. Te principle is simply that treaty members shall make remedies available so as to permit effective action against digital infringement online. Tat’s pretty much the sum and
Trademarks Brands and the Internet Volume 1, Issue 2 17
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