We know it’s a long way from perfect. We deplore the secretive and undemocratic manner in which it was negotiated. And we acknowledge that many of the criticisms of the agreement are justified. But the time has come for us all to stop carping about the Anti-Counterfeiting Trade Agreement (ACTA) because, like it or not, we’re going to have to live with it – for the time being, at least.
That’s because last month the European Parliament effectively gave its assent to ACTA, having voted against further criticism of the agreement. Instead, the EU welcomed recent changes to the draft legislation and stated that it will help EU countries to export with greater confidence that their intellectual property would not be infringed abroad.
ACTA was created to improve the global enforcement of intellectual property rights through the creation of common enforcement standards and practices and more effective international co-operation. It aims to achieve this by establishing shared international standards on how countries should act against large-scale infringements of intellectual property rights. But is ACTA, in its current form, “a step in the right direction” as the EU claims; or is it merely one more good intention paving the road to hell?
Criticism for the agreement has come from both sides of the debate, and in almost equal measure. Those who are fundamentally opposed to ACTA argue that it is an undemocratic measure, undertaken by a handful of self-selecting nations behind closed doors, which will allegedly threaten individuals’ rights.
Others – which includes the intellectual property (IP) rights holders, who are the big losers from globalised counterfeiting, – complain that this voluntary trade agreement is a toothless tool that adds little to the international IP enforcement framework.
My main concern with ACTA is that it will not deliver any improvement on existing legislation. In spite of the agreement’s tortuous drafting process (four years and 11 rounds of talks have passed since it was first proposed), ACTA will not change the existing body of UK and EU law, since this is already more advanced than many of the existing international standards.
Furthermore, because ACTA is a voluntary trade agreement, it doesn’t guarantee protection in markets where intellectual property is regularly abused. It’s difficult to see, for example, how the agreement will deter software pirates in China or manufacturers of “Gucci” handbags in Sri Lanka if neither of those countries have signed up to the agreement.
The fact that ACTA is being criticised by the parties it was designed to protect shows the limitations and deficiencies of the agreement. Yet these flaws are typical of transnational, multi-lateral agreements, and the wonder is that any agreement on such a complicated issue should have been reached at all.
Nobody can convincingly claim that ACTA is the panacea for copyright theft and counterfeiting. What it is, however, is a foundation on which to build more rigorous protection of intellectual property rights. In spite of its flaws, there are a large number of sensible recommendations in the agreement.
Article 2.2 of ACTA, for example, advises legislators to establish or maintain a system that provides for pre-established damages for copyright infringement. Such a system would surely create the deterrence that has been lacking in UK law and which has enabled file sharing and other copyright abuses to proliferate in recent years.
This illustrates that the problem with ACTA is not so much with its content, but with its effectiveness. While the provisions of the agreement have no basis in law, they do provide a useful starting point and guide to national legislators as to how they can best combat counterfeiting. To be truly effective, the ACTA recommendations need to be enshrined in law. It’s easy to decry ACTA for its failings, yet the fact remains that it’s the only globally-agreed framework for tool we have so far in the fighting against intellectual property theft.
That’s why, while acknowledging its flaws, some are calling for constructive criticism of ACTA so that it may be strengthened and improved – not done away with. This agreement, imperfect as it is, has taken years of wrangling to produce; if we are to kill it stone dead before it has a chance to prove itself, we are then back to square one, with not even a set of guidelines to protect our the world’s creative industries.
Intellectual Property Rights are a key asset of the UK economy and the broader European Union. It is vital these are protected so that we may compete with confidence as a knowledge economy. On the positive side, ACTA does provide a standard for enforcement plus an international forum in which the improvement of standards can be pursued.
That’s a start, at least. Let’s give this agreement a chance to bed in and see how it operates in practice. Then, all stakeholders must engage with the debate around ACTA, and work together to fix its flaws, while at the same time establishing an equitable and effective solution for combating counterfeiting.