The ACTA dilema

The Anti-Counterfeiting Trade Agreement (ACTA) is a European document that attempts to combat the proliferation of counterfeit and pirated goods and the infringement of intellectual property.  This is causing outrage among European citizens as many of them see it as outlawing certain everyday activities they believe they have the right to engage in.

One of the possible contentions is that the document allows the right holder to hold third party participants in the infringements accountable for the infringement.  These third parties may only be factory workers who did not know they were counterfeiting goods or infringing on intellectual property.  ACTA states, “Such information may include information regarding any person involved in any aspect of the infringement or alleged infringement and regarding the means of production or the channels of distribution of the infringing or allegedly infringing goods or services, including the identification of third persons alleged to be involved in the production and distribution of such goods or services and of their channels of distribution . . . Each Party shall provide that its judicial authorities have the authority to order prompt and effective provisional measures:

                (a) against a party or, where appropriate, a third party over whom the relevant judicial authority exercises jurisdiction, to prevent an infringement of any intellectual property right from   occurring, and in particular, to prevent goods that involve the infringement of an intellectual    property right from entering into the channels of commerce;
                (b) to preserve relevant evidence in regard to the alleged infringement.”

A second objection may be that the provision allows for criminal procedures against those individuals who use a trademark that is similar to an existing trademark.  ACTA states, “Each Party shall provide for criminal procedures and penalties to be applied in cases of wilful importation 10 and domestic use, in the course of trade and on a commercial scale, of labels or packaging: to which a mark has been applied without authorization which is identical to, or cannot be distinguished from, a trademark registered in its territory.”

Third, a taping of a school play that uses similar scene choreography to a copyrighted movie and then is posted on YouTube may create criminal liability under ACTA.  ACTA states, “A Party may provide criminal procedures and penalties in appropriate cases for the unauthorized copying of cinematographic works from a performance in a motion picture exhibition facility generally open to the public.”

Fourth, sharing content that includes a trademark, copyrighted material, or reproduction of intellectual property on a social media site by a private individual may create criminal liability.  ACTA states, “Further to paragraph 1, each Party’s enforcement procedures shall apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes.”

Finnally, ACTA imposes its regulation on those who are not party to the agreement making it applicable to those countries who reject the agreement.  ACTA states, “Each Party shall endeavour to work closely with other Parties and, where appropriate, non-Parties to this Agreement for the purpose of implementing the provisions of paragraph 1,” however, those not party to the agreement will not have representation in the ACTA Committee, “The Parties hereby establish the ACTA Committee. Each Party shall be represented on the Committee.”  This makes individuals in non-party nations unwittingly subject to ACTA.