EU suggests reason and logic behind ACTA

I’ve just finished reading the ACTA Fact Sheet, updated November 2008.  Here is some preliminary information:

1. ACTA is the Anti-Counterfeiting Trade Agreement.
2. The subtitle “Fact Sheet” is footnoted, “This fact sheet purports to explain the objectives of the ACTA negotiations.  It does not in any way interpret or prejudge on the provisions of a future agreement.”
3. This document was prepared by the EU’s European Commission on Trade.
4. You can find the Fact Sheet here:  http://trade.ec.europa.eu/doclib/docs/2008/october/tradoc_140836.11.08.pdf

This is the same ACTA that, based on early leaks that were likely from American sources, had many of us burning our passports, locking our mp3 players in vaults, encrypting our laptops, and generally vowing never to cross the border again.  (Earlier post:  http://weblawg.costinmedia.com/wp/intellectual-property/riaa-and-mpaa-hijack-the-border/)

My source of early panic was an article in that cauldron of superlative journalism, the Vancouver Province, to which I’d been directed by a friend.  Reading it, sucked in by the force of its writing, which was thoroughly unmitigated by journalistic integrity or what we academics call “checking your facts and citing your sources,” I felt inclined to stay forever north of the 49^th, my jaw dropped in disbelief that this is what border resources would be used for.

What’s the “this”?  Well, it seemed that an international coordinated effort to stop trafficking in counterfeit data and media at the border by peering into individual travellers’ mp3 players, laptops, USB keys, etc., on the hunt for that unauthorized copy of P. Diddy’s latest ditty, or Jim Carrey’s newest caper.

Being an international treaty, ACTA is exempt from Charter scrutiny or any of the other legislative checks we rely upon.

And, of course, there was also the fact that U.S. Border guards were already tackling what they saw – well beyond their dubious competency – as IP infractions.

So we had a reason to fear ACTA.

Here are some quotations from the Fact Sheet, giving a much more reasonable approach (all emphasis is theirs):

“The goal of the ACTA negotiations is to provide an international framework … to act against large-scale infringements of IPR [intellectual property rights].”  (p.1)

“[ACTA] fully respects fundamental rights and freedoms and civil liberties, … in particular in the area of personal data protection, as regulated by the Data Protection Directive and the Directive on privacy and electronic communications.”  (p.2)

In contrast to our early fears, the horror stories coming from U.S. borders (including airports), and the RIAA/MPAA lawsuits, the EU document states:

“ACTA is not designed to negatively affect consumers:  the EU legislation (2003 Customs Regulation) has a de minimis clause that exempts travellers from checks if the infringing goods are not part of large scale traffic.  EU customs, frequently confronted with traffics of drugs, weapons or people, do neither have the time nor the legal basis to look for a couple of pirated songs on an i-Pod music player or laptop computer, and there is no intention to change this.”  (p.2)

A few things to note from that last paragraph:

I’m not aware of any such de minimis clause in the United States, and recent news suggests that if there is one, the enforcement officers aren’t aware of it either.

The paragraph seems drafted either to assuage public concern or to criticize the American approach (not that the United States is a negotiating partner in ACTA), or both.

Finally, I’d like to re-iterate the key points, but can’t phrase them better myself, so:

According to the EU, ACTA will ignore “infringing goods [that] are not part of large scale traffic.”  ACTA will also not force already taxed enforcement officers “to look for a couple of pirated songs on an i-Pod music player…”

This is the first common sense government document on international IP enforcement I have ever read.

The rest of the document discusses harmonization of policies and synchronization of data for busting commercial scale counterfeit operations.  I won’t bore you with the details; suffice it to say they are logical.

The document also specifically addresses previous leaks and rumours:

“The negotiations are still ongoing.  This means that there is no agreement yet, and that, at the time of writing this fact sheet, there is not even a draft text on which negotiating parties converge.”  (p.4)

It seems that the earlier leaked documents were “concept papers,” representing views of individual parties but not of any consensus.

If this Fact Sheet’s goals are preserved when ACTA comes into being, as it surely will, we consumers have little to worry about.  Those who traffic in counterfeit IP, however, will have much to worry about as resources will be concentrated on them.

However, if the U.S. entertainment lobbyists (RIAA/MPAA) get their slimy pseudopods on it (with apologies to amoebae everywhere), then grandmothers and college students, beware!  It would behove you to start selling pirated IP to pay for your defence against RIAA for having downloaded some crappy John Tesh album.