Photo: Counterfeit jeans in a market in Bangkok (The label reads: =if(Label="","RMA","?") This is an Excel or Microsoft Access function. The factory is using Excel or Access to store all the logos for the different jeans they make and then print them onto leather. (Photo by Ben Donley. CC Attribution-Share Alike 2.0 Generic)Ever since its birth, the Internet has been the central theme of the tussle between the United States and the rest of the world over who should control it. And thank god that it was designed as such so that barring the somewhat limited control companies and countries exercise, the Internet is largely a free-for-all wonder.
However, going by the draft text of the Anti-Counterfeiting Trade Agreement Control (ACTA), if the new international agreement-in-process has its way, it could soon be controlling the Internet on behalf the United States, the UK, and a dozen other countries.
After keeping the terms of negotiations tightly under wraps -- despite global pressure -- for three years, ACTA finally revealed a draft text of the agreement on April 21. This revealed what has been feared all along: overruling each country's local laws, the ACTA would seek to significantly regulate what you can and can't do online.
Initiated in October 2007 by the United States, the European Community, Switzerland and Japan, the objective of the ACTA was to fight counterfeiting and piracy of physical goods like medicines, luxury items, and some softer items like movies, music, books, etc. - all which negatively impact States and companies around the world.
The growth of this menace spurred the ACTA participants to agree to develop an instrument that will strengthen international cooperation. And this subsequently attracted countries like Australia, the Republic of Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates and Canada to join in as participants.
Yet, a very disturbing feature of ACTA has been the fact that despite global pressure, the negotiations' details were kept a closely guarded secret. However, various leaked versions over the last three years indicated that the deliberation of the terms of the agreement focused not just on fake Guccis and medicines. It is also considering new rules to control online piracy of intellectual property and, by extention, some believe, the free flow of information over the Internet.
And now, the official draft has confirmed this fact.
"ACTA has several features that raise significant potential concerns for consumers' privacy and civil liberties, for innovation and the free flow of information on the Internet, legitimate commerce, and for developing countries' ability to choose policy options that best suit their domestic priorities and level of economic development," says Electronic Frontier Foundation, the US-based civil liberties group that claims to fight to defend rights in the digital world.
Similarly the European Digital Rights, says "This agreement is meant to become a global standard for trade agreements. If this happens, what will be left of the EU's historical credibility in the fight for free speech and democracy when it starts asking grateful undemocratic governments to place obligations on Internet access providers to terminate or prevent infringements? Of course, those measures, procedures, and remedies shall also be fair and proportionate but it is almost absurd to think that legal action would be taken if one party's implementation was excessive. It is, after all, an intellectual property agreement and not a human rights instrument."
According to EFF the draft language also indicates provisions that will include mandated disclosure of personal information in alleged IP disputes, a new global requirement that commercial scale piracy will also capture non-commercial copies, and new powers to place injunctions on IP violations with lowered standards of proof and limited due process.
What becomes evident here, as notes EFF is, that the global entertainment industries have been able to lobby well. "Much of the language is reminiscent of entertainment industry demands -- and nowhere in the draft is there mention of the rights of individual consumers and the IP balance driving innovation in the knowledge economy," it says.
"Most disturbing of all", added EFF is "an entire section of the treaty is devoted to rights management technology/the Internet suggesting that both negotiators and lobbyists are choosing to ignore the complex dangers of regulating the Internet across jurisdictions to match the demands of rightsholders."
Nevertheless even as ACTA threatens the carefully crafted balance of many countries' copyright laws that protects intellectual property rights and citizens' freedom of expression, an international framework that ACTA seeks to establish is indeed needed to effectively combat the proliferation of counterfeiting and piracy, which undermines legitimate trade and the sustainable development of the world economy.
Consider this: according to OECD estimates, infringements of intellectual property traded internationally (excluding domestic production and consumption) account for more than $200 billion per year (higher than the GDP of more than 150 countries).
This illegal trade is also growing phenomenally. For instance, OECD adds since 2007, seizure of fake cosmetics and personal care products has grown by 264%; toys by 98%; foodstuff by 62%; computer equipment by 62%; and medicines by 51%.
ACTA however argues that since counterfeiting and piracy are not only growing in the physical world, but also increasing alarmingly as well in the digital environment, it is important to bring in online counterfeiting and piracy within its purview as well.
Besides it adds there is no proposal to oblige ACTA Parties to require their border authorities to search travelers' baggage for IPR infringing goods or their personal electronic devices for IPR infringing downloads.
Neither does it wish to oblige ACTA Parties to require Internet service providers (ISPs) to terminate users' connections on the basis of accumulated allegations of online IPR infringement (the so-called "three strikes" rule).
Although there is no fixed time frame and no concrete end-date that has been set for the ongoing negotiations, participants are aiming to conclude the negotiation by the end of
2010.
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