Clinton's visit highlights ACTA scepticism

Doubts surface about Anti-Counterfeiting Trade Agreement

Sceptics have begun to express alternative views on the initially positively received latest version of the ACTA (Anti-Counterfeiting Trade Agreement) text.

New Zealand intellectual property and internet lawyer Rick Shera suggests prospective US and Japanese participation in the Trans-Pacific Partnership (TPP) free-trade agreement, could signal Round Two of attempts to secure for these countries what the watered-down ACTA has yet to achieve.

TPP was given a high profile by US Secretary of State Hillary Clinton, in New Zealand this week.

Present members of TPP are New Zealand, Singapore, Brunei and Chile, all comparatively small and open economies.

"The concern is, having had to water down ACTA under pressure from the European Union, US and allied interests will use TPP to get what they originally wanted by a different route and without having to worry about those pesky Europeans," Shera says.

"In this light it is revealing to see that Japan, an ardent supporter of maximalist intellectual-property protection alongside the US, is now considering joining TPP."

Shera and French internet lobby La Quadarature du Net both point with concern to a paragraph in the current ACTA text, obliging signatories to provide enforcement measures with respect to at least copyright and trademarks "including the unlawful use of means of widespread distribution for infringing purposes".

This looks like a continued attempt to rein in the use of peer-to-peer networks, says Shera; hence it carries an implied threat to impute some responsibility for online sharing of copyright material to ISPs, a strategy the optimists hoped had been defeated.

"It seems to me that if distribution is to be restricted in some way then ISPs as conduits must be the target, again opening the door to third-party liability and coerced graduated response," Shera says on his blog.

However, both point out that this clause is still in grey type and thus it has not been finally agreed to.

La Quadrature du Net also expresses fears a special-purpose committee established to consider "development" and amendments to ACTA might short-circuit more recognised international bodies. It calls the agreement and the way it has been negotiated "a counterfeit of democracy". The late release of an official version does little to ameliorate the secretive nature of previous discussions, the lobby says.

However, Canadian lawyer Michael Geist, a long-term follower of the ACTA negotiations, says La Quadrature is exaggerating its case by talking about ACTA "criminalising" P2P-aided infringement. "Enforcement" could equally be read as referring to civil action, he notes.

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