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Our Tweet Debate on ACTA is drawing closer...

Sep 20, 2012

This is Part 2 of our discussion on ACTA, the first of which can be found here, ahead of our twitter debate on 28 September 2012 from 4.30pm GMT/ 11.30am EST.   3. Wilful trade mark counterfeiting or copyright or related rights piracy on a commercial scale to be punishable as a criminal offence with penalties including imprisonment and fines.   The EU perspective - There is no EU legislation on criminal enforcement at present. This is something which is dealt with at member state level. The UK has criminal sanctions for both copyright and trade mark infringement. Anti-ACTA organisations like La Quadrature have commented that ACTA in fact goes beyond EU intentions by defining commercial scale broadly to include “indirect economic benefit” which could include actions by private individuals.   Further digital rights umbrella organisation EDRi argues that the broad and vague measures of “commercial scale” together with criminal sanctions for “aiding and abetting” infringements will have a chilling effect on innovation.   The US Perspective - While US copyright law already provides that a copyright infringement is criminal where it "is willful and for purposes of commercial advantage or private financial gain." 17 U.S.C. § 506. In reality, most infringements either do not rise to the level of "willfulness" or are not otherwise prosecuted under criminal laws unless such infringement is of a grand scale. It is unlikely that ACTA's provisions would add anything to the existing US mechanism with respect to this issue.   4. Information collected by member states should be shared with all treaty signatories to combat international IP infringements.   The EU perspective - In an ever more globalised economy and online infringement it seems only sensible that countries share information in order to combat infringers who operate in multi jurisdictions. However, these provisions have become some of the most controversial with opponents concerned over privacy and “Big Brother” states sharing information on their own citizens.   Article 19 of the European Enforcement Directive already provides for the exchange of information amongst Member States and the European Commission. Of course, should ACTA ever come into force in all those countries which originally signed up to it, there would be a great expansion in the number of Member States exchanging information.   The US Perspective - From the US perspective, privacy rights advocates are less concerned with the sharing of information with ACTA signatories as they are with the initial collection of such information. Warrantless government monitoring of private citizens' internet activities would be a potential violation of the US Constitution's Fourth Amendment. Accordingly, should ACTA be ratified in the US, such ratification is more than likely to lead to litigation which would seek to strike certain provisions from the agreement as unconstitutional.   Is it all going to happen?     In order for the treaty to become effective, it must be ratified by 6 members. Currently, only Japan has ratified it.   On 21 June 2012 MEPs on a key European parliamentary committee voted to reject ACTA by 19 votes to 12. The Parliament later followed the committee and overwhelmingly rejected ACTA. Commentators have suggested that the European Parliament’s rejection could be a final blow for the ACTA in Europe, perhaps in response to growing public concerns over its provisions.   In conjunction with Tim Bukher, a lawyer from US firm Handal & Morofsky LLC and specialist in Intellectual Property and Internet law, Waterfront will host a Tweet Event on 28 September at 4.30pm GMT/ 11.30am EST to discuss ACTA from both a European and United States perspective.   Follow @uklaw and @TBukher on twitter and join the debate!