New counterfeiting and copyright agreement with ACTA

ACTA stands for Anti-Counterfeiting Trade Agreement. Before reading on please read it. You can find it at http://register.consilium.europa.eu/pdf/en/11/st12/st12196.en11.pdf. There’s no point talking about something unless you’ve read the original document.

So what do you make of it. Simply put, it’s defined as a trade agreement between many countries to bring about the prosecution of any person or organisation who sells  counterfeit products or infringes intellectual property rights through the reuse of digital content, thereby offering an international legal framework to deal with counterfeit trading and intellectual property infringement. The powers stated in the articles within this agreement can be exceeded by participating countries through their own legal systems.

I don’t disagree that there is a need to redefine our copyright laws, nationally and internationally but what I don’t agree with is embedding what appears to be a new international copyright law within a trade agreement. Digital content must be treated differently to physical products beacause we endanger the distribution of knowledge unless care is taken to define the framework within which content can be provided and used.

Countries who have signed up are: UK, Austria, Belgium, Bulgaria, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxemburg, Malta, Netherlands, Poland, Portugal, Romania, Slovenia, Spain and Sweden, US, Australia, Canada, Japan, Morocco, New Zealand, Singapore and South Korea.

I’ve long despised the trade in counterfeit physical goods having seen people lulled into buying knock-off goods just because the things being sold were listed at heavily discounted prices. We’ve all seen them at markets in major cities around the world. I have no objection to providing a way for the rights holder to bring about legal proceedings against someone selling fake versions. The seller of the fake products is making money out of someone else’s time and investment.

But that’s for physical products.

The part that has become a talking point is Section 5 entitled the “ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS IN THE DIGITAL  ENVIRONMENT” (Anti-Counterfeiting Trade Agreement; p33. http://register.consilium.europa.eu/pdf/en/11/st12/st12196.en11.pdf.

At the start it outlines how anyone infringing another’s intellectual property rights in a digital environment can be prosecuted in accordance with this trade agreement. It goes on to state that any enforcement of the prosecution must not affect anyone who is not infringing the agreement, thereby protecting law-abiding bodies. The thought that is running through my head is whether there is a grey area that will come about due to the difference in interpretation of what is and what isn’t an infringement.What constitutes an infringement? Is paraphrasing a paragraph an infringement? Is copying a sentence or two an infringement? Is using a 2-3 second clip from someone else’s video an infringement?

Going on to Section 5 (4), the rights holder will be able to go to an ISP and request they provide information that identifies the account that was used for the infringement. In addition, (5) states that the ‘Party’, ie country that has signed up to the agreement, must work out ways to prevent the use of technology to deliver copyrighted works in a way that gets round security and other digital rights management processes put into place by the rights holder.

All this seems pretty sensible, be able to identify the person who has reused original content as their own and share this with the authorities and person in a different country, as well as being able to break down the means by which content can be distributed illegally. The key word though is that the account used to infringe the rights should knowingly have done so.

I see no issue with this if the rights holder clearly states that their work is copyright and they do not wish their work to be reused in any way by anyone who has not received their permission to do so. An author who wants their work to be shared, and not in its entirety, should publish it under a Creative Commons licence, which can give others the right to reuse it without express permission.

One perspective on this is to place the responsibility with the owner of the intellectual property. They must explicitly state how they will allow their work to be made available to the public. If they want their work to be shared and distributed then they should choose the appropriate copyright licence and state it clearly. If you don’t have permission then pay for it. If you don’t want to pay for it then don’t use it. Is this a bit harsh? What are the arguments against this?

The one area that worries me is how authorities will go about identifying and monitoring infringements of intellectual property and counterfeiting. ACTA appears to give carte blanche to authorities to do so as long as they can prove their techniques are in place to catch those who break copyright and counterfeit law. There are already highly sophisticated plagiarism checkers in operation and much content has been digitised and available for use within these. Will anything, including film and audio, published via iTunes, Amazon, etc be subject to processing into an immense data library that is used to monitor activity? A small body of people will have the right to limit the online rights of various people as a result of their having permitted intellectual property to be shared in such a way the author did not intend, or did not explicitly state on publication.The net they will need to cast is a wide one indeed.

I agree in principle with not making money out of someone else’s work when they expressly do not wish you to. However, if they aren’t concerned about you doing this then it shouldn’t be outlawed. Additionally, there are currently civil sanctions against this so the author has the option to sue. What happens if the ‘perpetrator’ has not made any commercial gain out of reusing content,  but instead wants to simple spread information?

As you can probably tell, I’m no lawyer and could really do with understanding copyright law better. But, and it’s a big but, creating a new international copyright law and embedding it within a trade agreement does not seem right, and it is this that I’m opposed to. It’s important to not combine the two and allocate more time to the discussion of how intellectual property can be protected where it needs to be. Providing the stick with which to beat people operating in the grey area without adequately defining what that grey area is makes little sense as the final outcome is more than likely to be stricter laws that actually infringe the rights of those who want to share information.