Friday, January 27, 2012

Post SOPA and PIPA here comes ACTA

With the obvious threats to the internet SOPA and PIPA being shelved, the sneaky one that's being pushed by the WTO and has been already been agreed (but not ratified) by the EU is ACTA. That's the Anti-Counterfeiting Trade Agreement.

If we use the OED's definition of counterfeit we see

made in exact imitation of something valuable with the intention to deceive or defraud
a fraudulent imitation of something else

ACTA seems fair enough until as with SOPA and PIPA you start reading the actual text and you discover this isn't just about counterfeit goods it's about pirated goods too.

The WTO even acknowledges this on the lead page
ACTA aims to address this by establishing shared international standards on how countries should act against large-scale infringements of intellectual property rights
Except here's the thing - Counterfeiting is fraud; pirating isn't. In order to make a convincing counterfeit then intellectual property would need to be breached as I'd need to label the product with a brand name or logo etc.. However breaching intellectual property itself is not fraud.

So how does this apply to the internet? Well consider a counterfeit to be "an imitation". If I buy a song track from iTunes and then burn it to a CD for a friend is that CD counterfeit? It's not an imitation; I'm not pretending it's a product sold under licence; no fraud has been committed just a breach in copyright.

Again so what? Well ACTA states that the Parties (i.e. the states that sign up to this) shall
provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale

A law that is currently a civil matter will through EU legislation become a criminal matter and although there's the current limit imposed by "on a commercial scale" making a copy of a song (even for your own personal use) may become illegal if permission hasn't been granted by the Right Holder.

This takes copyright out of the civil courts. i.e. where the Right Holder accuses someone of copyright violations, and into the criminal courts where is is the state accusing someone of violating the Right Holder's copyright.

The state becomes the enforcers of the Right Holder's intellectual property


Wiebe said...

Read this and find out that counterfeiting is not as bad as it sounds in many cases.


FlipC said...

Let's label that as "reverse-engineering" without which we wouldn't have any AMD processors just Intel's.

However my main point was that this 'anti-counterfeiting' act isn't really about counterfeiting, which should already covered by fraud laws in all EU countries, but is about copyright enforcement.

The state wouldn't be prosecuting because a retailer is selling goods that pretend to be something they're not; they'd be prosecuting because the retailer is using someone's copyright or trademark without permission.