The Super-Secrective Anti-Counterfeiting Trade Agreement Gives the Finger to Citizens, NGOs and International Governing Bodies

In a rather ludicrous display of backdoor shenanigans several high-profile countries have created and signed a new trade agreement aimed at stomping-out the $250-billion counterfeiting market. The Anti-Counterfeiting Trade Agreement (ACTA) is a new international trade agreement created by G8-led countries (representing 50% of world trade) was conceived under a veil of secrecy, without democratic vote or process.

One of the many, many groups opposing the agreement is the Electronic Frontier Foundation (EFF), a citizen watch-dog group that feels that civil society, developing nations and international organizations – tasked with anti-counterfeiting – have been intentionally excluded from negotiations. “ACTA is being negotiated by a select group of industrialized countries outside of existing international multilateral venues for creating new IP norms such as the World Intellectual Property Organization and (since TRIPs) the World Trade Organization,” states a release on the EFF website.

ACTA will provide a new global framework for the protection of intellectual property rights, superseding the apparently less-effective patchwork of rules created by the various governing bodies currently in charge of property rights, specifically the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO) . This new agreement ensures that all participating countries have the legal framework in place to practically enforce the new laws, including trapping criminals and doling out penalties like imprisonment and destruction of goods. The agreement also empowers countries to impose anti-circumvention measures like digital locks.

These new rules will apply to both physical goods and online infringement, including counterfeit goods, generic medicines and on- and offline copyright infringement.

There are several major objections to the agreement: the inequality of outlawing generic medicines already entrenched in TRIPS, the privacy invasion issues with monitoring online behavior and finally the so-called ‘optional’ entry for non-signatories.

Generic Medicine Debate

Signatory nations of ACTA in the EU, in response to massive out-roar about denying access to life-saving generic medicines, have explicitly expressed in public statements that ACTA will not interfere with access to generic medications. The generic medicine market, according to the EU, accounts for about 10% of the world medicine market, with the majority of them heading to the world’s poorest countries where patented medicine is out of reach for most.

The minds at the Washington College of Law however have read and interpreted the agreement (and it takes a legal mind to interpret the legalese that ACTA was written in) have found nothing in the written agreement that would verify those public statements.

According to the WCL in D.C., ACTA would empower signatory countries to seize generic medicines in transit countries despite them not infringing on the laws of that country. ACTA could also implicate “non-infringing active pharmaceutical ingredient suppliers whose materials may be used downstream in infringing products without their knowledge”.

The WCL notes that ACTA violates democratically enacted international law from pre-determined internationally governing institutions. They specifically site “the WTO Doha Declaration on TRIPS and Public Health and World Health Assembly Resolution 61.21 by limiting the ability of countries to use the TRIPS flexibilities ‘to the full’ to promote access to medicines.” ACTA, according to the WCL also violates the WTO’s TRIP agreement in articles: 1, 7, 8, 40, 41.1, 41.2, 41.5, 44.2, 46, 47, 48.1, 48.2, 50.3, 52, 53.1, 54, 55, 56, and 58.

By creating this new, and redundant, framework ACTA is undermining and contradicting the roles of internationally-agreed-upon WIPO and the WTO.

Invasions of Privacy

Practically all defenders of freedom to privacy and the access to information for world citizens are objecting to ACTA based on entrenched and entitled principles of privacy. This multitude of organizations including Consumers International, EDRi, the Free Software Foundation (FSF), the Electronic Frontier Foundation (EFF), ASIC, and the Free Knowledge Institute  (FKI), the Free Software Foundation and many more, are encouraging internet users to understand the consequences of the agreement. If ACTA pushers have their way ISP providers operating in signatory countries will be forced to cooperate with rights holders.

The ISP cooperation will entail monitoring the online behavior of its users and will likely involve the blocking of websites and the disconnection of violators–bringing the much tougher Euro-centric property law to the U.S. and other signatory countries. The WCL agrees with the aforementioned points and posits that punishments would transpire without due process and anti-circumvention measures would threaten innovation, competition and open business models.

The imposition of US and Euro-centric law brings up another important issue, of forcing US and European-focused law onto countries whose economies or citizens could be damaged by ACTA. Bruce Lehman, lead architect for the Digital Millennium Copyright Act (DMCA), and active ACTA supporter points out that ACTA will be the perfect tool for the U.S. and other developed countries to force their pre-negotiated law onto the rest of the world. “We are in negotiations with other governments to advise them as to what they need to do to implement their responsibilities in these treaties to provide effective remedies,” says Lehman. “These treaties will cause other countries to bring their laws up to US standards.” ACTA detractor group IP Justice lamentably agrees with Lehman that countries will be forced into ACTA’s ‘locked’ text, as few – if any – will have the muscle to refuse entry into the agreement.

The developing countries and their citizenry that will be forced into the G8-led agreement could potentially lose access to payment-based information due to the unfair trade models that devalue their wages, economy and currency. “ACTA would raise barriers to the trade in knowledge imbedded goods, disproportionately harming developing countries dependent on imports and exports of essential goods,” says a WCL statement.

Not surprisingly the adversely affected developing countries that will be forced to sign on to the agreement were those parties excluded from the trade agreement negotiations–primarily BRIC countries–whose combined populations reach almost 3 billion. Those countries also happen to be the greatest source of counterfeit goods.

If you wish to research ACTA further, here is the final text of the agreement (PDF).