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The Last ACT(A)…? Three themes from our EU/US debate

Oct 4, 2012

On Friday 27 September 2012 Waterfront (@uklaw) co-hosted a twitter debate with @TBukher of Handal & Morofsky LLP in New York.   The focus of the debate was ACTA in the EU and US.  The Anti-Counterfeiting Treaty (ACTA) is an international treaty to which both the EU and US signed up.   ACTA’s provisions have included highly controversial intellectual property infringement provisions such as criminal sanctions.  We have highlighted some of these in our blogs (which you can catch up on here and here).   Our debate highlighted on (a) the impact that ACTA could have if enforced; and (b) the political will to pursue enforcement of ACTA.   Hot Topic #1: ACTA is a “backdoor” for states to enact unpopular copyright infringement provisions   For @TBukher “perhaps the biggest concern in the US is that ACTA seems to be an international “backdoor” to create [a] SOPA-like law”.   SOPA (the “Stop Online Piracy Act”) was proposed in the USA in October 2011.  It included far-ranging powers to block websites which had material posted on it which infringed copyright, and to criminalise individuals which infringed copyright. Concerns over the impact of the bill led to an “internet black out” on 18 January 2012 with in the region of 7000 websites shutting down.   ACTA’s provisions are not identical to SOPA but they have similar aims and for @TBukher one specific concern: information sharing.   ACTA provides for the gathering of information about individuals and sharing that information between member states.  @TBukher said that, “in the US international information sharing is seen as a potential loophole to 4th Amendment protections” i.e. expectations that the state will not intrude on their privacy without a warrant and/or where the state has a reasonable or articulable suspicion of criminal behaviour.   Hot Topic #2: Do the politicians still want to further ACTA?   In the US, @TBkukher said that “US politicans seem to be quiet on this pending the election” and that the presidential candidates were likely to “want to avoid something as controversial as SOPA right now”.   It appears that some states will continue to resist ACTA.  For example the current Canadian-EU Trade Agreement (“CETA”) reportedly contained provisions which were “near identical” to elements of ACTA.  On 17 September 2012 the Dutch Government issued an open letter, in which it stated that,   “In light of [a resolution of the Dutch parliament], this government will not agree – in whatever agreement this may be – to any ACTA-provisions it voted against. Examples are provisions on the strict enforcement of intellectual property on the internet and provisions that stand in the way of future intellectual property reforms.”   The UK government has not made an equivalent announcement and it is unclear to what extent it would oppose such a treaty.  It is not clear whether the Dutch position will be followed by any other government.   Industries including pharmaceuticals, film and music are likely to continue to push for the enactment of an international anti-counterfeiting agreement.   Hot Topic #3:  Is offline infringement the same as online infringement?   ACTA and several recent cases on the issue have been driven by the music, film, and pharmaceuticals industries but how similar are their products, rights and how similar should the responses be?   In the UK, on 14 August 2012, a decision was handed down jailing Anton Vickerman for his role in running the site, surfthechannel.com which provided users with links to both permitted and copyright infringing content.   Vickerman was sentenced for conspiracy to defraud the copyright owners of their rightful royalties, a criminal fraud, rather than copyright infringement under the Copyright Designs and Patents Act 1988.  It was heard before a jury and is an unusual route to enforce copyright infringement.   In his sentencing remarks the Judge said that the Prosecution’s estimate of loss of revenue was “put at between £52 and £198 million. Those figures are based on their research suggesting that 55% of those who accessed the films for free would, had they been unable to watch them for free, have paid either through the box office to watch the film or rented a DVD.”   This perspective suggests that there should not be a difference between online and offline infringement.  However, in contrast, some commentators such as @glynmoody have noted that there is a difference between online copyright works and offline copyright works.  Offline works are limited in number and are “scarce” this is one reason for their value.  In contrast, the argument is that online works are “abundant”.  This is because they are not limited in the way that physical goods are.  To see more of @glynmoody’s thoughts on this see here.   From our discussion, ACTA in the EU and US while perhaps not dead is certainly lying low.  However, even if ACTA isn’t ever formally adopted, it is inevitable that there will continue to be lobbying and attempts made for “ACTA-like”  provisions on international copyright protection.