Patent Baristas

The United States along with Australia, Canada, the European Union and its member states, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore, and Switzerland reaffirmed their commitment to the Anti-Counterfeiting Trade Agreement (ACTA) at a signing ceremony in Tokyo.

The agreement is meant to fight against the infringement of intellectual property rights (IPR), in particular the proliferation of counterfeiting and piracy on a global scale, providing a mechanism for the parties to work together in a more collaborative manner to achieve the common goal of effective IPR enforcement.

It includes provisions on civil, criminal, border and digital environment enforcement measures, robust cooperation mechanisms among the ACTA parties to assist in their enforcement efforts, and the establishment of best practices for effective IPR enforcement.

With respect to the legal framework, the ACTA establishes a strengthened standard that builds on the minimum standards of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). It is said that this marks a considerable improvement in international trade norms for effectively combating the current global proliferation of commercial-scale counterfeiting and piracy.

Representatives of eight governments – Australia, Canada, Japan, South Korea, Morocco, New Zealand, Singapore and the US – signed the agreement. Representatives of the European Union, Mexico and Switzerland attended the ceremony and confirmed their continuing strong support for for the agreement but said they’d sign some other day.

Formal ACTA negotiations started in June 2008, with the final round of negotiations being held in Japan in October 2010. Following translation and technical work, the ACTA was opened for signature on May 1, 2011.

The U.S. Chamber of Commerce’s Global Intellectual Property Center (GIPC) applauded the conclusion of the Anti-Counterfeiting Trade Agreement in a press release:

“The signing of the ACTA is a big victory for the American business community, workers, and IP-intensive sectors across our economy,” said Mark Elliot, executive vice president of the GIPC. “This accord raises the bar on enforcement by improving cooperation among partners, harmonizing how we confront IP theft, addressing IP theft online, and setting a positive example for nations that aspire to have strong IP enforcement regimes. We urge the negotiating countries to move quickly to complete the relevant domestic processes in signing and implementing the agreement to help protect IP jobs and spur economic growth.”

Not everyone thinks the agreement is great, though.  Gigi B. Sohn, president and co-founder of Public Knowledge noted:

“Although the final version of the Agreement was an improvement from earlier versions, we continue to believe that the process by which it was reached was extremely flawed.  ACTA should have been considered a treaty, and subject to public Senate debate and ratification or, in the alternative, debated in an open and transparent international forum such as the World Intellectual Property Organization (WIPO).  Instead, public interest groups and the tech industry had to expend enormous resources to force the process open to permit public views to be presented and considered.”

But, ACTA no longer exports the worst parts of the Digital Millennium Copyright Act — the 1998 law that makes it a crime to unlock a DVD to back it up. Although it has a loosely worded ban on tools used to unlock “digital rights management” technologies, a footnote makes it clear that it is not required for  manufacturers and software developers to ship products with DRM restrictions.

Second, ACTA no longer demands that countries hold Internet providers responsible for copyright infringement committed by their subscribers.

Some aspects of ACTA, however, remain controversial since the agreement does not mention “fair use” anywhere.

Critics say the biggest problem is that the eight signatory  countries don’t include the main offenders in copyright disputes. Most agree that until you get China to sign this document, this probably won’t change much.

You can read the finalized text of ACTA here.