I have not been paying attention to ACTA until yesterday when my daughter brought it to my attention and helped me understand the seriousness of this issue. Yes, this blog is about education but it is also about my freedom to say what I believe to be the truth. It’s  a small example of truth to power and I am grateful that I am able to share my views and information freely with others.

We have watched how individuals, countries and now corporations have been able to take control over people’s lives, one incremental step at a time. It happens sometimes without people even noticing it until it’s too late. I don’t want to see that happen in terms of the freedom that we now enjoy and take full advantage of in the use of the internet.

First a little history on this subject. Japan and the United States held basically secret talks starting in 2006 to develop ACTA, then other countries were invited to join the discussion. According to Wikipedia:

ACTA first came to public attention in May 2008 after a discussion paper was uploaded to Wikileaks. After more leaks in 2009 and 2010 and denied requests for disclosure by groups such as Doctors without Borders, IP Justice, the Canadian Library Association, and the Consumers Union of Japan, the negotiating parties published an official version of the then current draft on 20 April 2010. In June 2010, a conference with “over 90 academics, practitioners and public interest organizations from six continents” concluded “that the terms of the publicly released draft of ACTA threaten numerous public interests, including every concern specifically disclaimed by negotiators.” A group of 75+ law professors signed a letter to President Obama demanding that ACTA be halted and changed.

Opponents have argued that the treaty will restrict fundamental civil and digital rights, including freedom of expression and communication privacy.”The bulk of the WTO’s 153 members” have raised concerns that the treaty could distort trade and goes beyond the existing Agreement on Trade-Related Aspects of Intellectual Property Rights.Opponents also criticize ACTA’s removal of “legal safeguards that protect Internet Service Providers from liability for the actions of their subscribers” in effect giving ISPs no option but to comply with privacy invasions.According to an analysis by the Free Software Foundation, ACTA would require that existing ISPs no longer host free software that can access copyrighted media, and DRM-protected media would not be legally playable with free or open source software.

Nate Anderson with Ars Technica pointed out that ACTA encourages service providers to collect and provide information about suspected infringers by giving them “safe harbor from certain legal threats”. Similarly, it provides for criminalization of copyright infringement on a commercial scale,granting law enforcement the powers to perform criminal investigation, arrests and pursue criminal citations or prosecution of suspects who may have infringed on copyright on a commercial scale. It also allows criminal investigations and invasive searches to be performed against individuals for whom there is no probable cause, and in that regard weakens the presumption of innocence and allows what would in the past have been considered unlawful searches.

From 16–18 June 2010, a conference was held at the Washington College of Law, attended by “over 90 academics, practitioners and public interest organizations from six continents”. Their conclusions were published on 23 June 2010 on the American University Washington College of Law website. They found “that the terms of the publicly released draft of ACTA threaten numerous public interests, including every concern specifically disclaimed by negotiators.” A group of 75+ law professors has signed a letter to President Obama demanding a host of changes to the agreement. The letter alleges that no meaningful transparency has been in evidence.

As you can see, there are some very serious issues involved that have not received adequate public attention.

Out of the conference that was held at the American University Washington College of Law came the following conclusions.

Text of Urgent ACTA Communique

International Experts Find that Pending Anti-Counterfeiting Trade Agreement Threatens Public Interests

June 23, 2010

American University Washington College of Law

Washington, D.C.

This statement reflects the conclusions reached at a meeting of over 90 academics, practitioners and public interest organizations from six continents gathered at American University Washington College of Law, June 16-18, 2010. The meeting, convened by American University’s Program on Information Justice and Intellectual Property, was called to analyze the official text of the Anti-Counterfeiting Trade Agreement (ACTA), released for the first time in April, 2010. Negotiating parties released the text only after public criticism of the unusually closed process and widespread disquiet over the negotiations’ presumed substance. (See Wellington Declaration, EU Resolution on Transparency and State of Play of the ACTA Negotiations).

We find that the terms of the publicly released draft of ACTA threaten numerous public interests, including every concern specifically disclaimed by negotiators.

  • 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.

ACTA is the predictably deficient product of a deeply flawed process. 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.

Any agreement of this scope and consequence must be based on a broad and meaningful consultative process, in public, on the record and with open on-going access to proposed negotiating text and must reflect a full range of public interest concerns. As detailed below, this text fails to meet these standards.

Recognizing that the terms of the agreement are under further closed-door negotiation over a text we do not have access to, a fair reading of the April 2010 draft leads to our conclusion that ACTA is hostile to the public interest in at least seven critical areas of global public policy: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.

The following specific comments are based on a review of the publicly released text which is highly bracketed and the conclusions are therefore tentative.


FUNDAMENTAL RIGHTS AND FREEDOMS

ACTA would authorize or encourage private and government enforcement measures that would:

  • curtail enjoyment of fundamental rights and liberties, including domestic and internationally protected human rights to health, privacy and the protection of personal data, free expression, education, cultural participation, and right to a fair legal process, including fair trial and presumptions of innocence.

THE INTERNET

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;

SCOPE AND NATURE OF INTELLECTUAL PROPERTY LAW

ACTA would distort fundamental balances between the rights and interests of proprietors and users, including by

  • introducing highly specific rights and remedies for rights holders without detailing correlative exceptions, limitations, and procedural safeguards for users;
  • shifting enforcement burdens to public authorities and private intermediaries in ways that are likely to be more sensitive to proprietary concerns;
  • requiring formula-driven assessment of damages, potentially unrelated to any proven harm or gain;
  • omitting strong disincentives to abuse of enforcement processes by right holders;
  • including rigid injunction, damages and heightened civil and criminal enforcement  requirements that will restrict government flexibility, impede innovation and slow the development and diffusion of green technology;
  • threaten the continuation or development of innovative public interest exceptions, such as common law approaches to permitting copies of works by “authorization.”

INTERNATIONAL TRADE

ACTA would raise barriers to the trade in knowledge imbedded goods, disproportionately harming developing countries dependent on imports and exports of essential goods. Specifically, ACTA will

  • Extend ‘ex officio’ and in transit border search and seizures to a broad range of “suspected” intellectual property infringements, even including alleged patent infringements involving complex questions of law and fact that are impossible to judge by custom authorities.

DEMOCRATIC PROCESS

ACTA alters traditional and constitutionally mandated law making processes by:

  • Exporting and locking in controversial and problematic enforcement practices, foreclosing future legislative improvements in response to changes in technology or policy;
  • Requiring substantive changes to laws of many countries without legislative process;

The process of ACTA’s negotiation is fundamentally flawed. Specifically, the negotiations:

  • Have not been conducted in public as are many multilateral negotiations;
  • Have not been accompanied by evidence demonstrating the public policy problems sought to be addressed;
  • Have proceeded under conditions that restrict public input to select stakeholders, held off-the-record and without access to the latest version of the rapidly changing text;
  • Lack a balanced representation of stakeholders, especially from civil society.

This article was published in the Washington Post on January 27, 2012, European parliament’s ACTA monitor quits in protest. To follow is an excerpt. I have put in bold portions of the text:

The European Parliament’s independent monitor for the Anti-Counterfeiting Trade Agreement (ACTA) resigned Friday in protest after 22 European Union member states signed the anti-piracy treaty Thursday.According to the BBC,Kader Arif said that he condemns “the whole process which led to the signature of this agreement: no consultation of the civil society, lack of transparency since the beginning of negotiations, repeated delays of the signature of the text without any explanation give, reject of Parliament’s recommendations as given in several resolutions of our assembly.”Protests in Poland and Ireland sprung up over the treaty as critics warned that the treaty could lead to online censorship by extending existing intellectual property laws to the Internet. Several drew parallels between ACTA and two U.S. bills being considered in Congress, the Stop Online Piracy Act and Protect IP (Intellectual Property) Act. Rep. Darell Issa (R-Calif.) said in remarks at the World Economic Forum that he believes ACTA is “more dangerous” than SOPA.

Scholars have said that the treaty has implications for the United States, as well. The Obama administration has already agreed to ACTA through an executive agreement, an act that Sen. Ron Wyden (D-Ore.) challenged in October. Wyden said that ACTA is a treaty that has implications for U.S. intellectual property law and should have been ratified by the House and Senate. For it’s part, the Obama administration has said that it does not believe ACTA’s implementation would have any effect on U.S. law.

Wyden disagrees, saying in his letter this past fall that, “ACTA’s subject matter — including foreign commerce and intellectual property — appear to me and other to relate to Article I powers of Congress, not issues lying within the President’s sole constitutional authority .”

As attention paid to SOPA and PIPA have turned to ACTA, Wyden has gotten more allies. As of Friday, over 3,800 people have signed a petition to the White House to have ACTA submitted to the Senate.

In Poland thousands of people took to the streets in protests of ACTA when it came to a vote in Parliament this week. According to the Washington Post article ACTA protests erupt in Poland:

It’s not every day parliamentary members identify themselves with a subversive Internet group. But that’s just what happened in Poland when lawmakers from the leftist party Palikot’s Movement covered their faces with Guy Fawkes masks, the look that has become shorthand for Anonymous. A contentious fight broke out in parliament — and in the streets — over Poland’s plans to sign the Anti-Counterfeiting Trade Agreement (ACTA).

For additional information on ACTA see Anti-Counterfeiting Trade Agreement What is ACTA?

For the most up to the minute news on ACTA actions I would recommend RT.

To sign the petition, go to  End ACTA and Protect our right to privacy on the Internet.

Dora