ONLINE CONTROVERSY
substance of what it provides. In the abstract, that sounds like a very good principle and is certainly one that I would support, but it sort of issues a mandate without much explanation about what that would look like.”
The key point of Section 5 Article 27 is to make enforcement actions that can be taken against offline counterfeiting and piracy apply to online counterfeiting and piracy, says Candice Li, external relations manager for anti-counterfeiting at
the International Trademark Association (INTA).
“That’s a fair interpretation, but digital piracy is such a different phenomenon from the trans- border movement of physical goods,” says Cahn. “The mandate to provide procedures and remedies to
permit effective action
against, for example, the digital distribution of pirate goods—what does it mean in context? Does that mean the host country must make measures available to enforce against the host of that website, the search engine that leads users to that site, the company that registered the domain name of that website, or others?
“I think it’s the lack of clarity of that broad principle that is feeding the general concern, the flames of which were fanned by the US Stop Online Piracy Act (SOPA) that, broadly interpreted, these principles could shut down the Internet.”
Li explains: “There isn’t a full consensus on what measures to take against counterfeiting on the Internet, and that’s why the Internet section is a bit broader and contains a much simpler, more fundamental set of measures. This is a way to help countries that don’t have the same type of anti-counterfeiting measures as the EU and US to understand what they can do, and how they can tackle counterfeiting online.
“In that way, brand owners will benefit from being able to do that in those countries.”
EU countries including Germany and Poland have delayed signing the agreement, and opponents to it are surfacing in European politics. In January, Kader Arif, who was the European parliament’s rapporteur for ACTA, resigned from his post in protest. Another rapporteur, David Martin, recently told the European parliament, which has to ratify ACTA before it becomes binding in Europe, that it should shelve the agreement.
Martin said: “The intended benefits of this international agreement are far outweighed by the potential threats to civil liberties. Given
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“THERE IS VERY LITTLE [IN ACTA] THAT SPECIFICALLY MENTIONS ONLINE IP INFRINGEMENT. IT’S NOT AN INTERNET TREATY; IT’S VERY MUCH CONCERNED WITH HARD GOODS IN THE MAIN PROVISIONS.”
the vagueness of certain aspects of the text and the uncertainty over its interpretation, the European parliament cannot guarantee adequate protection for citizens’ rights in the future under ACTA.”
Despite the opposition to ACTA, rights holders are keen to see it signed and implemented. Li handles all of INTA’s anti-counterfeiting policy initiatives worldwide and has tried to demonstrate business and industry support for the agreement. The association and its members are concerned about trademark infringement and counterfeiting, particularly
spotlight of our highest independent judicial authority ... a referral will allow Europe’s top court to independently clarify the legality of this agreement.”
The CJEU is being asked to “clarify the legality” of ACTA to ensure that it meets EU laws, says Schneider. “It’s clearly in line and there isn’t going to be a big surprise from the CJEU—I hope.”
Clarity over what ACTA does and does not do has been sought in Europe because of the way the agreement was negotiated. Hinze says that good policy requires input from “all affected stakeholders”, but ACTA “clearly failed on that score”.
She says that it was negotiated in a “secretive and non-transparent” process, adding that an official ACTA text was not released until April 2010—“two years after negotiations had been under way”.
“The EFF filed a Freedom of Information
Act request and subsequent lawsuit in 2008 to obtain information about the negotiation objectives for ACTA. That
resulted in
the disclosure of 159 redacted pages of background information; a further 1,362 pages were withheld on the basis of a ‘national security’ classification. As a result, EFF and other public interest groups concerned about citizens’ freedom of expression and access to medicines had to rely on ACTA texts that had been leaked to the Internet to learn what was in the agreement.”
as it is “definitely a trend that isn’t ebbing at this point in time”, she says. “Right now we’re seeing different trends in counterfeiting that are presenting new anti-counterfeiting challenges to
enforcement authorities.
Because of that, much more international cooperation is needed. There needs to be both higher standards and new ways to tackle counterfeiting, and that is what we see in ACTA.”
In response to protests, the EU Commission decided to refer ACTA to the Court of Justice for the EU (CJEU), although the EU parliament will not make
its own referral
and so will not wait for the CJEU’s opinion before voting on the ratification of ACTA. EU commissioner Karel De Gucht stressed that ACTA will “change nothing about how we use the Internet and social websites today”, nor will it “hinder freedom of the Internet or freedom of speech”. He added: “Let’s cut through this fog of uncertainty and put ACTA in the
Trademarks Brands and the Internet Volume 1, Issue 2
In the EU’s case, ACTA was negotiated in this way because it is a trade agreement, says Schneider. “It’s not customary in that field to share the negotiation process and the intermediary results of this process,” he says. “It’s really important to keep that in mind.”
He adds: “Speaking for myself, I think rights holders would’ve liked more influence over negotiations, as would many who are opposed to ACTA. I think it wasn’t clever to negotiate ACTA in secret.”
The fact that ACTA was drafted behind closed doors adds to the controversy surrounding it, as the intentions of its negotiators are unclear. Schneider says that the objective of ACTA is to create high standards for enforcing IP rights that trading partners can be “convinced to sign up to”.
He adds: “The idea was never for the EU or the US or other developed economies to change their own laws. They have just taken good
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