Anti-Counterfeiting Trade Agreement

On April 21, 2010, the countries behind the Anti-Counterfeiting Trade Agreement (ACTA) finally released a consolidated draft of ACTA after a lengthy, closed-negotiation process between the United States, European Union, Japan, Korea, Australia, New Zealand, Mexico, Morocco, Singapore and Switzerland.

ACTA aims to promote improved international intellectual property protection and crack down on counterfeiting, copyright violations and other intellectual property piracy.  The agreement is far reaching, covering areas including the manufacture and sale of counterfeit pharmaceuticals, the illegal downloading of music and the practices of technology companies.

ACTA is being negotiated largely in secret, despite promises to the contrary.  Critics claim that this, coupled with the fact that ACTA is being negotiated by relatively few nations, outside normal multinational channels such as WIPO or the WTO’s TRIPS framework, drastically reduces protections offered by more public and more inclusive negotiations.  Additionally, critics are concerned that signatories are using ACTA for “policy laundering”—the practice whereby nations enter binding international agreements in order to pass unpopular laws domestically.  Further, because nations excluded from the negotiations are likely to be required to join ACTA as a condition to future treaties, the process is essentially making an end-run around providing those nations with any meaningful participation in ACTA’s substantive requirements.  Domestically, the U.S. is seeking to implement ACTA as an executive agreement, rather than a treaty, which allows for implementation without consent of Congress, again reducing public discourse on the substance of the agreement.  Taken in the aggregate, some fear the above concerns may actually change the manner in which laws are passed and implemented, reducing legislative accountability and public input.  

Substantive criticisms include the argument that ACTA will not require any changes to U.S. law, but foreign signatories will be expected to change their own laws in accordance with ACTA requirements, leading many to conclude that the U.S. is using ACTA to export its intellectual property laws overseas.  Others fear the extent to which ACTA may impose liability on individuals and technology companies, potentially reducing the free flow of information and technology over the Internet.  

ACTA proponents firmly believe that the ACTA agreement is an important step in defeating internet piracy and intellectual property theft.  They argue that stronger enforcement of copyright protection will save not only jobs, but entire industries.


New York Times