Anti-Counterfeiting Trade Agreement- Controversial Beyond Its Subject Matter

Negotiations to establish the Anti-Counterfeiting Trade Agreement (ACTA), a treaty aiming to establish international standards on intellectual property rights and enforcement, were dealt a blow as the European Parliament adopted a written declaration which made clear its opposition to the harmonisation of EU copyright, patent and trademark law. The European Commission has been negotiating the treaty, on behalf of Europe, with countries including Australia, Canada, Japan, South Korea and the United States.

The treaty aims to establish the best way of dealing with counterfeit goods, from pirated films and software through to fake electrical goods and medicines. It also contains proposals aimed at dealing with online intellectual property infringement. ACTA has attracted a substantial amount of controversy, not only in terms of its subject matter but also in the way it has been negotiated.

Negotiations have taken place behind closed doors outside of established international bodies such as the World Trade Organisation (WTO) and the World Intellectual Property Organisation (WIPO). Opponents of the treaty criticised this lack of transparency and the decision of the negotiating parties not to release details of the meetings. In May 2008, a discussion paper was uploaded to the WikiLeaks website and numerous other leaks emerged in the following months. In September 2009, it was discovered that the Office of the United States Trade Representative had circulated draft copies of the treaty to various corporations including Dell, Google, News Corporation, Sony Pictures and Time Warner.

The secret nature of negotiations led to a majority of MEPs signing a declaration calling for greater transparency and the publication of negotiation documents. A draft copy of ACTA was eventually published in April of this year after the European Parliament threatened to take action in the European Court of Justice in order to gain access to the negotiation documents.

Controversial proposals which were abandoned during the negotiation process included a proposal for making internet service providers liable for material downloaded illegally through their infrastructure and the United States’ push for the inclusion of a “three strikes” law to combat persistent file sharers following European opposition. The EU is currently pushing for its geographical indicators to be protected in ACTA countries, although the US is opposing this at present. The compromises and outstanding differences between the negotiating parties underline the problems associated with formulating a common policy where opinions differ substantially between those parties. The European Trade Commissioner has conceded that an agreement can only be concluded if its scope is kept minimal, despite the fact that this will limit its effectiveness.

It is likely that ACTA will be finalised by the end of the year, despite disagreements as to what should be included and questions being asked of its ability to deal with the trade in counterfeit goods. The closed nature of negotiations and the avoidance of the WTO and WIPO to facilitate an agreement has raised questions as to whether the treaty is in the public interest. Supporters of ACTA say it will help to create a broad consensus on how to deal with counterfeit goods, so it is not surprising to note that the countries which produce the most counterfeit goods are not parties to the agreement.

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