Tech Panelists Explain Remaining Problems With ACTA

November 1, 2010

The Anti-Counterfeiting Trade Agreement may have been negotiated behind closed doors, but the Washington International Trade Association hosted an open discussion on the final draft of the controversial agreement.

Computer & Communications Industry Association President & CEO Ed Black told those gathered that he had problems with both the substance and the process of how ACTA developed. Transparency was a big issue as well as a sort of bait and switch. He said the anti-counterfeiting title would lead one to think it dealt with trademarks, but somehow that expanded into Internet liability – with Internet companies left out of the talks.

Black, who represents a broad range of companies that depend on IP rights, said that while enforcing IP rights is important, so is balance. He said at a certain point the cost of heavy-handed IP protection can outweigh the benefits.

Black said the reasoning behind the law and protections for trademarks, patents and copyright is all very different and trying to pile them together with enforcement measures for countries with different laws and different rules for rights like due process is problematic.

“Giving injunctive powers to countries that don’t now have them is dangerous,” Black said. He went on to liken it to saying everyone should have the death penalty and then not worrying about whether their country also has provisions for the right to a lawyer.

A big concern is that most countries do not have fair use laws so if ACTA is approved, US companies could face expensive law suits in foreign courts for business practices that are perfectly legal in the United States.

While the full cost to tech and media companies is not known, Emery Simon of the Business Software Alliance said that software companies would benefit from the crackdowns on piracy ACTA would provide. He said the border enforcement provisions will help, but that 60-70 percent of the illegal software problem is illegal corporate copying.

Simon said he wished ACTA included provisions to require Internet Access Providers and others to provide IP addresses to catch pirates. “ACTA is an incremental step – not a final step,” Simon said. “It doesn’t resolve all issues.”

Black acknowledged there are improvements to the liability faced by Internet Access Providers and websites for activities of their customers, but said the enforcement provisions set floors, but not ceilings. He said that certain enforcements are not mandatory, but encouraged and it is unclear what that will mean in practice.

Both Simon and Black were pleased language was removed from ACTA that could have cut off Internet access for those accused of illegally sharing or distributing copyrighted material.

“Cutting off access without due process is wrong. It’s the kind of thing totalitarian governments do,” Simon said.

He also agreed that filtering the Internet to patrol for copyright violations would have been overkill.

Black said giving any broad new powers to countries that don’t have balanced IP laws,  similar due process or free speech rules is problematic because they can use that power for all kinds of purposes, like chilling free speech on the Internet, and then point to complying with ACTA as a shield.

Kira Alvarez, who negotiated ACTA on behalf of USTR, explained the goals of the agreement in off-the-record remarks at the event.

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