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[Rolan Sacco]

TheAnti-Counterfeiting Trade Agreement (ACTA) is a multilateral treaty for the purpose of establishing international standards for intellectual property rights enforcement that did not enter into force. The agreement aims to establish an international legal framework for targeting counterfeit goods, generic medicines and copyright infringement on the Internet, and would create a new governing body outside existing forums, such as the World Trade Organization, the World Intellectual Property Organization, and the United Nations.

The agreement was signed in October 2011 by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea, and the United States.[6] In 2012, Mexico, the European Union and 22 countries that are member states of the European Union signed as well.[7] One signatory (Japan) has ratified (formally approved) the agreement, which would come into force in countries that ratified it after ratification by six countries.

Industrial groups with interests in copyright, trademarks and other types of intellectual property said that ACTA was a response to "the increase in global trade of counterfeit goods and pirated copyright protected works". Organizations such as the Motion Picture Association of America and International Trademark Association are understood to have had a significant influence over the ACTA agenda.[8]

Organisations representing citizens and non-governmental interests argued that ACTA could infringe fundamental rights including freedom of expression and privacy. ACTA has also been criticised by Doctors Without Borders for endangering access to medicines in developing countries.[9] The nature of negotiations was criticized as secretive and has excluded non-governmental organizations, developing countries and the general public from the agreement's negotiation process and it has been described as policy laundering by critics including the Electronic Frontier Foundation and the Entertainment Consumers Association.

The signature of the EU and many of its member states resulted in widespread protests across Europe. European Parliament rapporteur Kader Arif resigned. His replacement, British MEP David Martin, recommended that the Parliament should reject ACTA, stating: "The intended benefits of this international agreement are far outweighed by the potential threats to civil liberties". On 4 July 2012, the European Parliament declined its consent, effectively rejecting it, 478 votes to 39, with 165 abstentions.[10][11]

Negotiations for the ACTA treaty are not part of any international body.[12] ACTA was first developed by Japan and the United States in 2006. Canada, the European Union (represented in the negotiations by the European Commission, the EU Presidency and EU Member States)[13] and Switzerland joined the preliminary talks throughout 2006 and 2007. Official negotiations began in June 2008, with Australia, Mexico, Morocco, New Zealand, the Republic of Korea and Singapore joining the talks. The Senate of Mexico voted unanimously to withdraw Mexico from ACTA negotiations on 30 September 2010.[14]

According to a 2008 European Union commentary there was at that stage no draft, but a leaked document constituted initial views as they had been circulated by some of the negotiating parties.[25] Leaked details published in February 2009 showed the 6 chapter-division also present in the final text. Most discussion was focused on the "Enforcement of Intellectual Property Rights" (IPR) chapter 2, which had the four sections also present (but slightly differently named) in the final version: Civil Enforcement, Border Measures, Criminal Enforcement and Intellectual Property Rights Enforcement in the Digital Environment.[25] Apart from the participating governments, an advisory committee of large US-based multinational corporations was consulted on the content of the draft treaty,[26] including the Pharmaceutical Research and Manufacturers of America[27] and the International Intellectual Property Alliance[28] (which includes the Business Software Alliance, Motion Picture Association of America, and Recording Industry Association of America).[29] A 2009 Freedom of Information request showed that the following companies also received copies of the draft under a nondisclosure agreement: Google, eBay, Intel, Dell, News Corporation, Sony Pictures, Time Warner, and Verizon.[30]

On 23 March 2010, the entire "18 January 2010 consolidated text" of sections 2.1 and 2.4 (Civil Enforcement, and Special Measures Related To Technological Enforcement Means and the Internet) along with the demands of each negotiator was leaked to the public.[31][32]

The negotiating parties published the then-current draft on 20 April 2010.[33] In June 2010, a conference with "over 90 academics, practitioners and public interest organizations from six continents"[34] concluded "that the terms of the publicly released draft of ACTA threaten numerous public interests, including every concern specifically disclaimed by negotiators." A group of over 75 law professors signed a letter to President Obama demanding that ACTA be halted and changed.[35] A full consolidated text of the proposed ACTA, dated 1 July 2010,[36] apparently coming from the civil liberties committee (LIBE) of the European Parliament[citation needed] was leaked providing the full text from the Luzern round of negotiations, including the name of the negotiating parties along with their positions.

On 16 April 2010, the negotiating countries issued a joint statement that they had reached unanimous agreement to make the consolidated text, as established at that round of negotiation, available to the public by 21 April. It was also decided to not release individual negotiating positions of countries.[13] The final draft text was published on 20 April 2010.[23] The final text was released on 15 November 2010,[1] and published on 15 April 2011 in English, French and Spanish.[2]

A draft Report from 26 August 2008 by the European Commission tried to establish a mandate from the European Parliament for the negotiation of ACTA.[38] On 25 September 2008 the Council of the European Union adopted a resolution in support of ACTA.[39] In November 2008 the European Commission described ACTA as an attempt to enforce intellectual property rights and states that countries involved in the negotiations see intellectual property rights as "a key instrument for their development and innovation policies". It argues:[25]

The proliferation of intellectual property rights (IPR) infringements poses an ever-increasing threat to the sustainable development of the world economy. It is a problem with serious economic and social consequences. Today, we face a number of new challenges: the increase of dangerous counterfeit goods (pharmaceuticals, food and drink, cosmetics or toys, car parts); the speed and ease of digital reproduction; the growing importance of the Internet as a means of distribution; and the sophistication and resources of international counterfeiters. All these factors have made the problem more pervasive and harder to tackle.

In March 2010, a leaked draft negotiation text showed that the European Commission had proposed language in ACTA to require criminal penalties for "inciting, aiding and abetting" certain offenses, including "at least in cases of willful trademark counterfeiting and copyright or related rights piracy on a commercial scale."[40] In a report published on 11 March 2009, the European Parliament called on the European Commission to "immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available".[41]

The resolution called for the European Commission and the European Council to "grant public and parliamentary access to ACTA negotiation texts and summaries, in accordance with" the Lisbon Treaty and "Regulation 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents." In the resolution, the European Parliament "deplores the calculated choice of the parties not to negotiate through well-established international bodies, such as WIPO and WTO, which have established frameworks for public information and consultation". The European Parliament asserted that under the Treaty of Lisbon the European Commission needed to provide "immediate and full information" to the European Parliament on international treaties, such as ACTA. The resolution also "stresses that, unless Parliament is immediately and fully informed at all stages of the negotiations, it reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives".[41]

The treaty is according to Article 39 open for signature until 1 May 2013 for the participants involved in the negotiations as well as all members of the World Trade Organization (WTO) of which the participants agree. It enters into force after subsequent ratification by six states (Article 40). After 1 May 2013, WTO members that did not sign, may accede to the convention after approval by the ACTA committee (Article 43).

A signing ceremony was held on 1 October 2011 in Tokyo, with the United States, Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea signing the treaty. The European Union, Mexico, and Switzerland attended but did not sign, professing support and saying they will do so in the future[42][43] (the European Union and 22 of its member states did so in January 2012). In May 2012, the Swiss government announced that it would withhold its signature while deliberations in the EU are pending.[44] In early July 2012, Claude Heller, Mexican Ambassador to Japan, signed the treaty.[4][45] On 23 July, the Senate of Mexico rejected the decision the Cabinet of the country took.[46]

The European Union and its then 28 Member States share competency on the subject of this convention. This means that entry into force on its territory requires ratification (or accession) by all states, as well as approval of the European Union.[47] Approval of the European Union involves consent of the European Parliament as well as the Council.[48] On 26 January 2012, the European Union and 22 Member States signed the treaty in Tokyo. According to depositary Japan, the remaining members (Cyprus, Estonia, Germany, Netherlands and Slovakia) were expected to sign it on the completion of their respective domestic procedures.[3] On 3 February 2012, Poland announced it halted the ratification process as it "had made insufficient consultations before signing the agreement in late January, and it was necessary to ensure it was entirely safe for Polish citizens."[47][49] Also, Bulgaria,[49][50] the Czech Republic,[49][51][52] Latvia,[53] Lithuania[54] and non-signatories Germany,[55] Slovakia[52][56] and Slovenia[49][57] have indicated that they have stopped the process of becoming a party to the treaty.On 17 February 2012, the Polish prime minister, Donald Tusk, announced that Poland will not ratify ACTA.[58][59][60] On 21 February 2012, a news report noted that "many countries in Europe that have signed the treaty have set aside ratification in response to public outcry, effectively hampering the ratification and implementation of the treaty."[60]

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