ACTA turns out to be a damp squib

I said damp squib, not damn squid.

Good news everyone. Remember that international multilateral secret agreement everyone was worried about? It turns out that we do not really have to worry that much about it any more. The newest draft text of the Anti Counterfeiting Trade Agreement (ACTA) has now been published, and it turns out that most of the controversial issues have been removed, reduced, or diluted, producing a text that will not change too much in various countries. Michael Geist, who has been reporting on the process from the start, says:

“One of the biggest stories over the three year negotiation of ACTA has been the willingness of the U.S. to cave on the Internet provisions.  When it first proposed the chapter, the U.S. was seeking new intermediary liability requirements with three strikes and you’re out used as an example of an appropriate policy as well as language that attempted to create a global DMCA.  The draft released today is a far cry from that proposal with the intermediary liability provisions largely removed and the DMCA digital lock provisions much closer to the WIPO Internet treaty model. In its place, is a chapter that is best viewed as ACTA Ultra-Lite.”

As stated in previous posts, one of my main concerns with regards to the application of ACTA in the UK was that it would export statutory damages to signatory states, opening the door for mega copyright infringement awards, such as the Jammie Thomas-Rasset infamous $1.5 million dollar liability decision. The final draft has further eroded those worries by providing three possibilities for signatories. Art. 2.2 (3) reads:

“At least with respect to works, phonograms, and performances protected by copyrights or related rights, and in cases of trademark counterfeiting, each Party shall also establish or maintain a system that provides for one or more of the following:
(a) pre-established damages, or
(b) presumptions for determining the amount of damages sufficient to compensate the right holder for the harm caused by the infringement, or
(c) at least for copyright, additional damages.”

So, while countries can adopt all three of those, they are under the obligation to have only one into effect. Because UK law already has a provision for the potential award of additional damages, if ACTA is implemented by the European Union, then UK copyright law would not need to be changed in this respect.

Is it time to relax and stop worrying about ACTA? Probably, at the moment it seems like the worst has been taken out of the agreement, and it really will not change much when it comes to substantive law. I think that we have more to be worried about the proposed Combating Online Infringement and Counterfeits Act (COICA) passing in the U.S. Senate’s Judicial Committee unanimously. Perhaps it is time for those still worried about ACTA to set their sights on the real threat. COICA will affect all of us.

6 thoughts on “ACTA turns out to be a damp squib

  1. Whatever ACTA turns out to be when and if it is adopted and implemented, will be influenced by more than 2 years of advocacy to make it less bad. It has certainly been improved quite a bit from January, but there a plenty to things wrong with it still, and it does create a new institution that can amend the agreement. The damages section of ACTA are among the outstanding problems today, particularly as they relate to copyright. The ACTA damages and "other remedies" sections are inconsistent with proposed remedies to the orphan works program, and take away important flexibilities in designing liability rules for copyright infringement.

  2. ACTA may not be everything that rent seeking corporations in the USA desired when they first drew it up but its the provisions other than ISP liability which are a major concern.

    In particular a number of provisions directly impact the poorest people in the world, especially with regard to access to medicines. Already European customs officials are intercepting legitimate generic medicines being shipped through Europe to developing countries on the basis of spurious claims of trademark confusion. ACTA will require other countries to deprive poor people of medicines too.

    In any event the mere existence of ACTA would undercut the legitimacy of WIPO and the WTO.

  3. It's good news that patents were ultimately removed from ACTA. Indeed, patent infringement is, legally speaking, so different from copyright and trademark violations, in terms of substance and result, that giving all infringement identical treatment makes little sense. Some had also voiced concern that the inclusion of patent-specific provisions could be used by some to prevent competition. In the face of such conflicts, it's better to be safe than sorry; save patents for another agreement.

  4. Patents have not been ultimately removed from ACTA. Instead a footnote allows countries to choose not to apply one chapter of ACTA to patents. That is hardly removal.

    Removal would be if ACTA explicitly excluded patents from its scope. That isn't the situation.

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