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Pending Global Treaty Threatens Free Internet,
Fundamental Rights

By Steve Watson

10 July, 2010

Over 90 academics, practitioners and public interest organizations from six continents have collectively warned that a secretive global treaty, currently being negotiated by governments of the world's largest economies would see tight controls placed on the internet and would threaten other fundamental rights and freedoms.

The Anti-Counterfeiting Trade Agreement (ACTA) has received fleeting public attention, yet it has been quietly evolving for a number of years. On it's face ACTA is described as a countermeasure directed at the rise of counterfeit goods, medicines and pirated copyright protected material, including “piracy over the Internet”.

If officially ratified, however, ACTA would mark the formation of a major new global legal infrastructure with relation to standards on intellectual property rights enforcement.
It would also see the formation of an international governing body to oversee implementation of the agreement. That body would operate beyond the jurisdiction of national governments and even beyond that of the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO) or the United Nations. ACTA would effectively challenge already defined national court precedents regarding consumer rights and “fair use” laws and could fundamentally alter or remove limitations altogether on the application of intellectual property laws.

The US, along with all the countries of the European Union as well as Japan, Canada, Australia, New Zealand and a handful of other countries, have been involved in the ACTA negotiations since 2006. Leaked drafts of the agreement in 2008, 2009 and most recently in April 2010 have raised concern over the legal scope of the proposed treaty. The secrecy surrounding the negotiations has also prompted further worry over the draconian provisions within the agreement. The Electronic Frontier Foundation , along with other notable watchdog organisations, have called for more transparency on ACTA.

A group of international experts was convened last month by the Program on Information Justice and Intellectual Property at The American University Washington College of Law to debate the proposed treaty. The group later released a communique that makes worrying reading. “ACTA is the predictably deficient product of a deeply flawed process.” The statement reads. “What started as a relatively simple proposal to coordinate customs enforcement has transformed into a sweeping and complex new international intellectual property and internet regulation with grave consequences for the global economy and governments' ability to promote and protect the public interest.”
The communique bullet points the following four key conclusions:

  • Negotiators claim ACTA will not interfere with citizens' fundamental rights and liberties; it will.
  • They claim ACTA is consistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS); it is not.
  • They claim ACTA will not increase border searches or interfere with cross-border transit of legitimate generic medicines; it will.
  • And they claim that ACTA does not require “graduated response” disconnections of people from the internet; however, the agreement strongly encourages such policies.
Those who endorsed the statement include professors from leading universities across the globe and several European members of parliament who have formed a working group on ACTA. The group identified at least seven critical areas of global public policy in which ACTA is hostile to the public interest. They define these as: “fundamental rights and freedoms; internet governance; access to medicines; scope and nature of intellectual property law; international trade; international law and institutions; and democratic process.”
With specific reference to internet governance, the group says ACTA would:
  • Encourage internet service providers to police the activities of internet users by holding internet providers responsible for the actions of subscribers, conditioning safe harbors on adopting policing policies, and by requiring parties to encourage cooperation between service providers and rights holders;
  • Encourage this surveillance, and the potential for punitive disconnections by private actors, without adequate court oversight or due process;
  • Globalize ‘anti-circumvention' provisions which threaten innovation, competition, free (freedom-respecting) software, open access business models, interoperability, the enjoyment of user rights, and user choice;
  • Internet law professor Michael Geist has previously spoken out against ACTA, noting that “The provisions would pave the way for a globalized three-strikes and you're out system,” referring to a proposal within the treaty to have internet service providers cut off service – without access to a trial or counsel – to anyone accused at least three times of illegally sharing copyrighted material. Geist has also noted that “offenders” could even be imprisoned for sharing copyrighted material.

The three strikes policy mirrors that contained within the recently passed Digital Economy Bill in the UK, with similar provisions also outlined in Australian legislation, indicating that ACTA negotiations may also be driving national government policy on internet regulation proposals. “The US government appears to be pushing for Three Strikes to be part of the new global IP enforcement regime which ACTA is intended to create…” Gwen Hinze at the Electronic Frontier Foundation has previously noted . “…despite the fact that it has been categorically rejected by the European Parliament and by national policymakers in several ACTA negotiating countries, and has never been proposed by US legislators,”.

The agreement would also force internet service providers to crack down on sites that offer file sharing and peer to peer software, even though those sites may be entirely legitimate. ACTA could even see popular Web sites like YouTube and Flickr shut down because of a provision in the treaty that would force them to monitor everything uploaded to the site for copyright violations.

The upshot is that all current and future innovations that allow knowledge and information to be distributed on a mass scale are directly threatened by ACTA simply because it presumes such technology will be used by a minority to distribute material that is deemed copyrighted.

ACTA represents another huge warship in an armada directing it's guns at the free internet. We have previously highlighted countless similar legislative programs that have either been enacted or are working their way into law in the U.S., Australia, New Zealand, Britain, and many other European countries. In addition, ACTA is so much more than an internet censorship bill, it covers physical goods and even medicines, while systematically re-writing previously established laws on trade and intellectual property.

Further Reading: Text of Urgent ACTA Communique

Further reading: Anti-Counterfeiting Trade Agreement – Wikipedia Entry