Surreptitious negotiations, covert drafts, leaked documents and swift announcements at the eleventh-hour – such is the stranger-than-fiction story of the ‘Piracy Treaty’ signed by several world powers in the past week.

Amid controversy about the autocratic role of the USA in the drafting process, and the not-so-voluntary gist of the treaty, most of the Allied Powers have signed the treaty, including Australia, New Zealand and Canada. The other signatories are Japan, South Korea, Morocco and Singapore, while the EU, Mexico and Switzerland have indicated their willingness to accede to the treaty before May 2013.

Shrouded by great secrecy, spurred by in camera negotiations, the multi-lateral Anti-Counterfeiting Trade Agreement (ACTA), or ‘Piracy Treaty’, is now public knowledge and open for (inevitable) debate.

“combat the proliferation of counterfeit and pirated goods”

While the final version of ACTA is significantly less potent than the original leaked version (dating from late 2009), it still bears a marked resemblance to the DMCA. Once in force, ACTA will operate to effectively expand upon the enforcement of IP rights in all member states while ensuring that such “measures and procedures […] do not themselves become barriers to legitimate trade”.

According to its preamble, the treaty aims to combat the “proliferation of counterfeit and pirated goods, as well as of services that distribute infringing material, undermines legitimate trade and sustainable development of the world economy, causes significant financial losses for right holders and for legitimate businesses, and […] provides a source of revenue for organized crime”.

Apart from deserving praise for leading the charge, ACTA should be welcomed for taking the fight to the enemy. Drafted in a very clear, transparent and often direct manner, ACTA contains several provisions for the speedy, procedure-free enforcement of IP rights.

Importation

These include the right to seize and detain, without justification, any shipment of goods (of commercial or domestic nature) under the suspicion that it may contain infringing goods in the widest sense. Similar “border measures” apply to the personal luggage of individuals, which may only be exempt from search and seizure at the discretion of the customs authority (s14 & 16).

As most torrent supporters will soon realise, ACTA will allow customs officials to examinethe content of personal computers under the suspicion that it may contain counterfeit or pirated goods or any mechanism designed for or capable of being used to circumvent IP rights protection mechanisms or create infringing copies.

“provision to search the contents of personal computers at border control”

After a reasonable period (s19) to establish whether such goods infringe IP rights, the competent national authority (customs) are vested with the discretion to destroy any infringing goods or dispose of it “outside the channels of commerce” (s20(1)). In the case of trademark infringement, removal of the mark is considered insufficient to qualify the goods for release.

Finally any determination of infringement may be followed by the imposition of “administrative penalties”, which is not defined.

Criminal Provisions

ACTA obliges every signatory to establish “criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale” (s23(1)).

Once again the ambit of the treaty extends beyond the limits of current law by referring to piracy on a commercial scale as acts carried out for direct or indirect economic or commercial advantage, punishable by a fine or imprisonment of a scale  “sufficiently high to provide a deterrent to future acts of infringement, consistently with the level of penalties applied for crimes of a corresponding gravity”.

Enforcement in the Digital Environment

By far the most extensive provisions of ACTA are dedicated to curbing IP rights infringement through electronic means (s27 et seq) (specifically Internet-assisted infringement).

Among others, these (arguably draconian provisions) allow for the interception of communications under the suspicion of infringement to the extent that such action is required in a civil or criminal suit for the purpose of identifying the infringing party.

In addition, the treaty requires every signatory to implement sufficient technological measures to prevent the unauthorised disclosure or dissemination of protected work by means of a digital network, provided that such measure will not interfere with legitimate activity. Clearly the treaty envisions the highest level of control over peer-to-peer file sharing services and cloud storage.

Of course the nature of such measure are not dictated by the treaty, and it is difficult to imagine a national monitoring system that may give effect to ACTA without unduly infringing the individual’s rights to privacy, freedom of expression and due process.

Stealing a march

ACTA is certainly not a preemptive strike, and the time for reconnoiter is long gone. The only defense to IP infringement is a sound offence, and acceding to this treaty should be the primary objective for every nation.

“our shores are a hotbed of infringement”

Unfortunately, while peer nations are engaged on the front line addressing piracy and counterfeiting, in South Africa all is calm. This, despite the fact that our shores are a hotbed of infringement and the primary conduit for pirated goods on the African continent, is hardly surprising.

“South Africa is likely to ignore the existence of ACTA”

It is trite that piracy threatens the very viability of IP, yet our Government is still pursuing its facile preoccupation with traditional knowledge – to the exclusion of everything else. Again, this comes as no surprise – South Africa is likely to ignore (if it ever recognises) the existence of ACTA in precisely the same manner it has shunned the WIPO copyright treaties.

And so it is inevitable that when the dust settles, the only loser in this battle will be our IP laws, and those who seek its protection.

A bite worse than its bark?

ACTA has sounded the horn in a battle of the current century, and it is clearly set to tackle the problems of today head-on. There is little doubt that it will meet with resistance from many nations, and even more so from the citizens of current signatories.

The Vine Oracle notes with interest the early commentary by supporters of the anti-IP movement, all of which is laced with no small measure of despair and trepidation – for good reason!

However, despite the possible opposition to ACTA (of which there is definitely some) the possible support for ACTA (of which there should be many) is undeniable.

For too long those in the know have lived in despair for the lack of effective protection mechanisms. ACTA has drawn a line in the sand, and it is time to pick a side. Let IPStell be the first to join the battle in support of ACTA…