1 February 2012Jurisdiction reportsJens Künzel

ACTA: is the criticism fair?

On February 11, 2012, more than 100,000 people in 55 cities demonstrated against the Anti-Counterfeiting Trade Agreement (ACTA) in Germany, an international trade agreement which has not been ratified in many countries, including Germany. Demonstrations took place on the same day in many other European countries such as France, Austria, Switzerland and Poland.

The widespread German protest is noteworthy, not only because of the high turnout in spite of very low temperatures, and the traditional German ‘reluctance’ to utter any kind of protest by going on the streets, but first and foremost because the criticism from the organisers—Germany’s Pirate Party (which seeks to promote ‘transparency’ in the Internet world) and the local Internet community—largely ignores the fact that the content of the ACTA agreement is already law in Germany.

The critics may have a point when they target the lack of appropriate transparency in the ACTA negotiations. The subject seems to stir emotion among interest groups (users and bloggers, the Internet business community), so more publicity and explanation would have defused much of the commotion from the outset.

“THE WIDESPREAD GERMAN PROTEST IS NOTEWORTHY BECAUSE IT LARGELY IGNORES THE FACT THAT THE CONTENT OF THE ACTA AGREEMENT IS ALREADY LAW IN GERMANY.”

However, the public criticism may not be justified as far as it concerns the content of ACTA. It is the express intention of the ACTA agreement to “complement” the existing Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement in the area of enforcement of IP rights. It also expressly addresses the enforcement of IP rights “in the digital environment”, which is the subject matter of Section 5 (Article 27) of ACTA. This section in particular has spurred public protests.

Many critics allege that the ACTA agreement contains authorisations for the states (the parties to the agreement) which may serve as the first step to ‘Internet blocking’, and a ‘surveillance regime’ for the purpose of ‘censoring’ the Internet community in the interest of the ‘copyright industry’. The agreement should be modified so that it deals exclusively with the enforcement of IP rights.

Also, Internet business groups bemoaned that, according to ACTA, Internet service providers (ISPs) will be made to act as ‘deputies’ for the ‘copyright industry’, because the agreement provided that these providers had to disclose information about potential infringers using their services.

First, there is nothing in the ACTA draft agreement indicating that states can exercise ‘control’ or ‘blocking’ of the Internet on a whim. From a German legal perspective, paragraphs (1) and (2) of Article 27 in the ACTA repeat the basic principle that IP rights will be enforced with the same remedies and procedures available in ‘normal’ infringement cases if the infringement takes place in the digital environment.

It is even expressly provided that “these procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce and, consistent with that party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy”.

This programmatic sentence explicitly addresses any legitimate concern which groups involved with the Internet might have with regard to adverse effects of IP rights enforcement.

Furthermore, any criticism that alleges the ACTA agreement should be modified in order to reflect that it ‘only concerns IP rights’ can be countered with the express text of the agreement. Finally, it is currently the law in Germany that in certain circumstances ISPs have to disclose information to the owner of an IP right about potential infringers using their services.

Provisions to that effect implement the EU Enforcement Directive, Article 8 (1)), which is—of course—also directly relevant for the infringement of copyright in the digital environment. The requirements of such a claim, for instance in the German Copyrights Act or the Patents Act or the Designs Act, are precisely laid down in the relevant law.

For instance, such a claim requires the “obvious” infringement of an IP right and that the ISP has provided services to the infringer “on a commercial scale” which have been used for infringing activities.

It may be concluded that the political unrest in the Internet community about ACTA—especially in Germany—is not warranted by the actual draft text of the agreement.

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