The Commission Publishes and Dispels "Myths" Around ACTA
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The European Commission has published the final text of the Anti-Counterfeiting Trade Agreement (ACTA) which is an agreement aimed at strengthening the enforcement of intellectual property (IP) rights and combating counterfeiting and piracy. The European Union participated in the negotiation of this agreement and has also published “10 myths about ACTA” to dispel the allegations that ACTA is unlike the US SOPA legislation.
ACTA sets out the legal framework and enforcement practices for enforcement of IP rights as follows. Although some of the framework is fairly high level, leaving a lot to individual a Member State’s discretion, there are also some meatier terms. The main controversy around ACTA has been around the provisions addressing infringement in the digital environment The ACTA provides, at Section 5, paragraph 2 that:
Each Party’s enforcement procedures shall apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with each Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.
A footnote to this paragraph suggests that such a procedure could include adopting or maintaining a regime providing for limitations on the liability of or the remedies available against internet service providers (ISPs). The ACTA also provides that each country shall provide for court orders against infringers or alleged infringers for delivery up of information relevant to the infringement. Commentators have criticised the proposed low burden of proof around online infringement (you must show an “alleged infringement”) on the basis that it could result in abuse of process.
The remainder of the enforcement provisions (in particular those broadly around trade mark infringement) outlined under ACTA are not particularly novel and Ireland already provides for a number of remedies which are in line with what is envisaged under ACTA.
The ACTA also emphasises the importance of international co-operation and provides for:
(i) enhancement of public awareness on intellectual property rights;
(ii) development and implementation of national legislation related to the enforcement of intellectual property rights;
(iii) training of officials on the enforcement of intellectual property rights; and
(iv) co-ordinated operations conducted at the regional and multilateral levels
Although, again, these provisions are fairly high level, it is hoped that further educational initiatives and co-operation around enforcement among Member States will flow from these undertakings.
The biggest concern around ACTA has always been that discussions occurred in private. Although, the final text of the agreement remains "subject to legal review”, it is now undoubtedly less extreme, as regards the “digital environment” provisions, than earlier drafts. The most controversial provisions around ISPs' liability and digital-rights-management have been diluted quite a lot from what was original drafted. Whether or not this will serve as helpful to Member States attempting to create workable legislation in this area remains to be seen.
