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ACTA: What went wrong?

IP lawyers lamented the public’s misunderstanding about the Anti-Counterfeiting Trade Agreement and discussed the future for the treaty in a workshop at the AIPPI Congress

ACTA drew an unprecedented response on the internet and street protests in Europe, with critics alleging lack of transparency in its negotiations and infringement of fundamental rights. Bryan Mercurio of the Chinese University of Hong Kong said that one thing that many critics failed to grasp is that ACTA was a permissive treaty, rather than one that required signatories to make significant, if any, changes to their laws.

In fact, he believes that this, rather than the criticisms of the protestors, was the real weakness. Countries such as the US, EU and Canada just looked at the treaty and said “nothing in ACTA requires us to change our laws”, he explains. Because of this, one of the treaty’s goals, which was to increase harmonisation, would not have been realised even if most countries ratified it.

Manon Rieger-Jansen of Bird & Bird in the Netherlands agreed, saying that it appears that many of the critics were responding to earlier drafts of the treaty, before some of the more controversial provisions were removed or watered down. Likewise, she argued that many of the concerns were unfounded, given the permissive nature of the treaty.

One example that Rieger-Jansen pointed to concerns the so-called digital environment provisions relating to internet service provider liability and graduated responses to serial internet copyright infringers. The text in ACTA states that signatories “may”, rather than “shall”, implement graduated response regimes, and that any system implemented should be provided “in accordance with its laws”.

Yusun Woo of Louis Vuitton Korea cited another example where she thinks misunderstandings fuelled the critics. Article 27(3) of ACTA contains language encouraging “cooperative efforts within the business community”, and those opposing the treaty appeared to have read it as mandatory.

What went wrong?

The panellists said that ACTA ran into serious opposition only because of the provisions concerning infringement on the internet. Concerns about internet access and what Mercurio refers as “an apparent fundamental right commit infringement” galvanised the protestors, the panellists suggested.

If those provisions were left out, ACTA would likely be ratified in the EU by now, Rieger-Jansen said.

The lessons learned from ACTA may have had a fundamental effect on how future trade treaties will be negotiated. Future treaties, including IP-related ones, will likely omit provisions involving internet infringement.

Mercurio, who has experience negotiating trade agreements in the past, also says that leaks are inevitable, so the parties may benefit from releasing information more frequently, in order to prevent the transparency arguments levelled against ACTA.


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