On April 21, negotiators released the draft of the Anti-Counterfeiting Trade Agreement (ACTA)--an in-the-works treaty containing the biggest changes to international intellectual property law since 1994. Negotiating governments have until now stonewalled attempts to gain access to ACTA, which has been the source of terrified speculation about border agents seizing laptops to search for downloaded songs. The draft of ACTA reveals what many expected: the real source of change in the IP landscape since 1994 has been the Internet, and the Internet, not counterfeit purses, is what is really at issue here.
ACTA does three things: 1) it evinces zero respect for existing international law by arbitrarily creating new institutions and ignoring old ones; 2) it seeks to standardize Internet law to the most stringent standard, ignoring balanced debate about what works for different countries; and 3) it lays the infrastructural groundwork for horrific privacy and free-speech problems to arise.
First, it's worth sketching how international IP law has evolved. Developed countries push for strong IP protection because it benefits domestic industries. Developing nations, whose citizens are less able to afford music or medicine, belatedly enter into regimes created by developed countries, and try to carve out exceptions that preserve basic human rights, such as the Doha Declaration. This game has moved through multiple organizations: from loose treaties to the World Intellectual Property Organization (WIPO), from WIPO to the World Trade Organization (WTO), and now from the WTO to ACTA.
ACTA shows no respect for existing international institutions: it creates a new institution, the "ACTA Oversight Committee", which enforces the agreement, and is composed only of ACTA members. In fact, ACTA's existence is a thumb in the face of international law, demonstrating that when developed nations can't get what they want out of existing institutions, they're more than happy to bypass them entirely.
Only five countries are needed for the agreement to become finalized, making the departure from existing international law a unilateral decision. Given the negotiating power of participating countries, it is more than likely that developing countries will end up joining ACTA's terms without having helped to negotiate them.
The substance of ACTA is also problematic. The US wants to apply its own law retroactively to other countries, which won't work; IP law has developed differently in different places, and is not one-size-fits-all. Countries have, for example, developed different responses to the question of how to allow search engines and ISPs such as Comcast to function.
ACTA looks to export one of the most stringent copyright regimes, the U.S. Digital Millenium Copyright Act (DMCA), without also creating uniform exceptions (or "fair use", as they're known in the US). This harms innovative businesses, and harms individuals, making both subject to stronger enforcement without informing where the law is on their side.
ACTA raises at least three additional scary prospects for search engines and ISPs: the possibility of the expanded use of injunctions ordering material removed or preventing material from being published; the possibility of actual imprisonment for employees of companies that are found to have "incited" or "aided" violations of copyright law; and the privacy-invading possibility that ISPs will have to report to rights-holders on their users' online activity.
For individuals, ACTA expands international criminal copyright law, and mandates imprisonment for copyright violations. The U.S. is one of the only countries to criminalize copyright infringement done solely for "private financial gain"--in the U.S., if you've downloaded enough music, you can go to jail for that downloading alone. This is rarely enforced, but we still seem to want to export it. Existing international law requires that to be sent to prison for copyright infringement, you must actually gain some commercial benefit of a certain scale by, say, selling the good.
Criminal law looks different in different countries for a reason; while in the US prosecutors have discretion not to go after these types of individuals, other countries have different ways of handling criminalization. With ACTA, we have given countries an easy way to imprison large swathes of their populations (the percentage of illegal filesharers has been estimated to be 30% in Spain).
By far the most troubling feature of ACTA is not the changes it makes to the law, but how it intends to enforce them. ACTA creates an information-sharing investigative infrastructure that is easy for nefarious regimes to abuse. ACTA gives border officials greater leeway in initiating and conducting investigations. ACTA encourages information-sharing between governments and private rights holders.
ACTA even proposes that countries establish formal mechanisms for conversations with rights-holding companies.
Last, but certainly not least, ACTA mandates information-sharing between countries in infringement investigations, giving potentially abusive regimes access to travelers' information in the name of protecting copyrighted material. This allows tracking and censorship in the name of IP protection, and once the investigatory and information-sharing tools are there, it is optimistic to think governments won't use them for other purposes.
International IP law has, until now, given enough breathing room to individual countries that they could experiment with balancing concerns about Internet policy with giving content-creators a way to make a profit. Different countries have arrived at different conclusions about these issues. ACTA, outside of any existing institutions, aims to bully countries to a uniform standard under enforcement mechanisms that threaten privacy and freedom of speech.
A shorter version of this commentary appeared in the San Francisco Chronicle on April 27, 2010.