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ACTA Guide: Part Four: What Will ACTA Mean To My Domestic Law?

By Michael Geist

Questions about ACTA typically follow a familiar pattern - what is it (Part One of the ACTA Guide), do you have evidence (Part Two), why is this secret (Part Three), followed by what would ACTA do to my country's laws?  This fourth question is the subject of this post, Part Four of the ACTA Guide.  The answer is complex since the impact of ACTA will differ for each participating country: some will require limited reforms, others very significant reforms, and yet others (particularly those not even permitted to participate) complete overhauls of their domestic laws.

That is not the answer that the participating countries have been providing. Instead, most have sought to dampen fears by implausibly claiming that ACTA will not result in any domestic changes in their own country.  With that in mind, we get:

• the European Union stating "ACTA will not go further than the current EU regime for enforcement of IPRs"
• the USTR maintaining that ACTA will not rewrite U.S. law
• Australia's DFAT confirming they do not expect to see major domestic changes to Australian law as a result of the ACTA
• New Zealand stating "ACTA will not change existing standards"
• Canadian Industry Minister Tony Clement assuring the House of Commons that ACTA will be subservient to domestic rules

Of course, if all of this is true, skeptics might reasonably ask why ACTA is needed at all.  The truth is that ACTA will require changes in many countries that ratify the agreement.  The EU Commissioner-designate for the Internal Market, Michel Barnier, recently acknowledged precisely that during hearings in Brussels.  Meanwhile, U.S. lobby groups have stated that they view ACTA as a mechanism to pressure Canada into new copyright reforms.

While Canadian officials may put on a brave face regarding the prospect of ACTA-inspired domestic reforms, the reality is that behind-the-scenes this has been a major concern for officials since before ACTA was officially unveiled.  I recently obtained under the Access to Information Act a copy of a response to the U.S. ACTA discussion paper from 2007 written by Doug George, who until recently led Canada's delegation on ACTA at DFAIT.  George's response takes great pains to emphasize the differences between countries and the need to take this into account:

While there may be a need to coordinate our efforts at the international level to fight counterfeiting and piracy, including through the negotiation of an ACTA, countries have implemented different systems and legislation to address this issue.  This needs to be taken into account in our discussions. For instance, the role of governments versus rights holders in enforcing IPR can vary greatly among the various systems, and specific systems for implementation have developed in different directions.

Canada's fears have quite obviously been realized as the vision of ACTA proponents is a one-size fits all solution based on the U.S. model of IP enforcement.  This will, by its very definition, require domestic change in many countries.

As for the specifics of domestic reforms, they depend on the country. Countries without statutory damages would need to add those to their laws.  Countries without DMCA-style anti-circumvention rules or a notice-and-takedown system would require those changes.  Countries without anti-camcording rules or new border enforcement measures or a host of other ACTA-related provisions would need to address those concerns.  There has been some preliminary analysis of possible changes in various countries. These include:

• Global (Gwen Hinze)
• Global (Hinze)
• Global (Hinze and Eddan Katz)
• United States (Katz)
• United States (Jamie Love)
• European Union (FFII)
• European Unon (FFII)
• Australia (Kim Weatherall)
• New Zealand (Jonathon Penney)
• New Zealand (Cyberlaw.org)
• Canada (CIPPIC)
• Canada (CIPPIC)

Not to be forgotten are those countries that are not part of the ACTA discussions.  The exclusion of many major trading partners (and the alleged leading sources of counterfeit products) are a major story since those countries will likely also face pressure to implement ACTA despite not having had the opportunity to participate in the talks.  I discussed that issue - and the need for developing countries to demand a seat at the table - last year in this piece.

Full post as published by Michael Geist on January 28, 2010 (boomark / email).