ACTA - The Good, the Bad and the Other

Dr. Maria Chetcuti Cauchi | 26 Apr 2012

Chetcuti Cauchi Lawyers

It’s the international agreement that until 2011 few had heard of. Yet the furore it created, in the last few months, is second to none.

The notional aim of the Anti-Counterfeiting Trade Agreement (“ACTA” or “the Agreement”) was always to provide a fresh, more sophisticated benchmark for intellectual property rights enforcement. ACTA is in fact an Agreement aimed at establishing an agreed level of international standards for IP rights enforcement in areas such as music, movies, pharmaceuticals and internet copyright infringement.

Knowledge, innovation, excellence, and originality are the main factors for success in knowledge-based markets. Acceptable protection and enforcement of intellectual property rights is a crucial condition for nurturing those elements. In 2006, Japan and the US propelled the discussions for a new agreement that would fight counterfeiting and piracy. ACTA was the result - a multilateral Agreement between a limited number of states, namely the United States, Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea, the EU and 22 of its Member States, amongst which Malta. The Agreement was signed on 1 October 2011 and has, since then, evoked a lot of debate, argumentation, protests and turmoil. The original brainchild of Japan and the United Stated in 2006, by 2007 Canada, the European Union and Switzerland joined the table of preliminary talks. Official negotiations, however, began only in June 2008, at which stage Australia, Mexico, Morocco, New Zealand, the Republic of Korea and Singapore joined the talks. The main aim behind the Agreement was to curb the proliferation of counterfeit and pirated goods in international trade which was resulting in substantial financial losses to right holders, hindering sustainable economic development and, in some cases, representing a risk to consumers.

ACTA has been regarded by many as a watered down version and as a sort of European variety of SOPA,[1] a United States bill introduced by U.S. Representative Lamar S. Smith to increase the ability of U.S. law enforcement to combat online trafficking in copyrighted intellectual property and counterfeit goods. However one of the main differences between the two lies in their legal basis in that ACTA is a trade agreement whilst SOPA is essentially an agreement centring around theft of US property. Nevertheless, SOPA has also been opposed by many who invoke freedom of speech and innovation as a main right. Many also opposed SOPA’s far reaching law enforcement powers to block access to whole internet domains due to infringing material posted on a single blog or webpage. Opponents raised concerns that SOPA would circumvent the "safe harbor" defences from liability afforded to internet sites by the Digital Millennium Copyright Act.

Since time immemorial an ever-lasting thug of war existed between right-holders and end-users of any form of technology with the former arguing that IP protection should be paramount and the latter petitioning for the right to freedom of expression, information and privacy.  But, let’s face it … it is only where ‘users’ metamorphoses into ‘abusers’ that the need for such effective implementation of enforcement is felt. It is estimated that IP rights infringement results in an €8 billion annual loss within the EU [2] and in a staggering $150 to 200 billion annual loss globally.[3] Everybody acquiesces and accepts that one needs to take some form of action to curb such abuse. Yet, the perennial question always lies in the extent of such measurements in terms of quality (which measures are to be implemented) and quantity (up to what level). ACTA should have been the answer to this everlasting contention in terms of intellectual property (IP) rights enforcement.

Having come to public attention in May 2008 after a paper was uploaded to Wikileaks,[4] ACTA has attracted considerable attention by government leaders and members of the civil society alike, particularly in light of the controversy that surrounded the Stop Online Piracy Act[5] (SOPA) and the PROTECT IP Act[6], proposed in the United States and later shelved, as explained above.

In this article, Dr Maria shall look at the provisions of the Agreement & their effect on different stakeholders & technology end-users.

Request More Information

Please send me legal and other updates

Related Industry Groups
Related Practices